B. N. KATJU, V. P. MATHUR, JJ. ( 1 ) OM Prakash has filed this appeal against the judgment of Vth Additional Sessions Judge, Saharanpur dated 15/9/1979 passed in S. T. No. 186 of 1969, convicting him under Section 302, I. P. C. and sentencing him to life imprisonment. ( 2 ) THE case of the prosecution is that the appellant assaulted his wife Smt. Mama Wati deceased on 20. 2. 1979 at about 6 a. m. inside his house in village Jagjit Pur with a Kulhari (axe ). ( 3 ) THE appellant was arrested by Dr. V. K. Kaushik P. W. 3 and the other eye-witnesses at the time of the incident and both Smt. Mama Wati deceased and the appellant were taken on a tractor to the G. D. Hospital, Hardwar where the deceased was found dead. ( 4 ) THE first information report was written by Dr. Y. K. Kaushik P. W. 3 at the hospital and he took the appellant with him from the hospital to Police Station, Jawalapur where the first information report was lodged by him at 9. 30 a. m. on the same day (20/2/1979 ). ( 5 ) THE post mortem examination was conducted by Dr. V. K. Chaudhary P. W. 4 on the same day (20/2/1979) at 3 P. M. and the under mentioned ante mortem external injures were found on the body of Smt. Mama Wati deceased :- 1. Lacerated wound 5. 5 cm x 1. 5 cm x brain cavity deep with pieces of bone and brain matter coming out from the wound on right side of head 6 cm above right ear. 2. Lacerated wound 6 0 cm x 1. 0 cm x brain cavity deep on right side of head. 1. 0 cm in front on injury No. 1. 3. Lacerated wound 4. 5 cm x 1. 5 cm x brain, cavity deep. Brain matter coming out from the wound, on right side of head 2. 5 cm in front of injury No. 2. 4. Lacerated wound 3. 5 cm x 2. 0 cm bone deep on right jaw, 0. 5 cm below right ear. ( 6 ) ON internal examination, the right frontal parietal and temporal bones were found to be fractured into pieces. 5 cm in front of injury No. 2. 4. Lacerated wound 3. 5 cm x 2. 0 cm bone deep on right jaw, 0. 5 cm below right ear. ( 6 ) ON internal examination, the right frontal parietal and temporal bones were found to be fractured into pieces. Linear fracture of the left parietal and temporal bones and fracture of ant, cranial fossa and middle cranial fossa were also found. ( 7 ) IN the opinion of Dr. Choudhary, the injuries found on the body of the deceased were sufficient in the ordinary course of nature to cause death. ( 8 ) THE prosecution examined four eyewitnesses, namely, Jai Pal Singh P. W. Sanat Singh P. W. 2, Dr. V. K. Kaushik P. W. 3 and Km. Rukmini P. W. 5. ( 9 ) MAHRAJ Singh I. O. P. W. 6 recovered the blood stained Kulhari Ext. 1 from the house of the appellant. ( 10 ) THE appellant pleaded not guilty and stated that he was implicated falsely due to enmity with Dr. V. K. Kaushik P. W. 3. ( 11 ) THE trial court after considering the evidence on record came to the conclusion that the prosecution had succeeded in establishing the guilt of the appellant and convicted and sentenced him as mentioned earlier. ( 12 ) DR. V. K. Kaushik P. W. 3 deposed that his house is situated close to the house of the appellant. The relation between the appellant and his wife Smt. Mama Wati deceased were strained before the occurrence as Smt. Mama Wati deceased used to earn money by washing utensils in the houses of various persons and the appellant suspected her fidelity. On 20. 2. 1979 at about 6 a. m. while he was at his house he heard noise coming from. the house of the appellant and he went there. In the meantime Jai Pal Singh P. W. 1 and Santa Singh P. W. 2 also came to the house of the appellant, Km. Rukmini P. W. 5 the daughter of the appellant, was also present inside his house at that time. The appellant was abusing the deceased and the deceased was trying to pacify him. The appellant thereafter picked up an axe and gave three or four blows with it to the deceased, as a result of which she received in juries and fell down. The appellant was abusing the deceased and the deceased was trying to pacify him. The appellant thereafter picked up an axe and gave three or four blows with it to the deceased, as a result of which she received in juries and fell down. The appellant then threw the axe. He, Jai Pal Singh and Santa Singh caught the appellant and took him and the deceased to the G. D. Hospital at Hardwar where she was found to be dead. He then wrote the first information report at the hospital and lodged it at P. S. Jwala Pur at 9. 30 a. m. on the same day (20. 2. 1979 ). It appears that a copy of the report was first shown to him, which was marked Ext Ka-1, and he said that it had neither been written by him nor signed by him. Thereafter the original report written by him, which was also marked as Ext. Ka-1, was shown to him and he admitted that it was in his hand-writing and was signed by him. He is a natural witness as his house is close to the house of the deceased. His statement that he reached the house of the deceased on noise appears to be convincing. His evidence is corroborated by the first information report, which was lodged by him promptly, and is also supported by the medical evidence. His statement that the appellant was arrested by him, Jai Pal Singh and Santa Singh inside his house soon after the incident is supported by the fact that the appellant was taken by him to P. S. Jwala Pur when he went there to lodge the first information report. It may be mentioned that it was stated by Head Constable Maha Singh P. W. 8 that the appellant was brought to the Police Station by Dr. Kaushik and Jai Pal Singh. It is true that it was admitted by Dr. Kaushik that there was litigation between his relation Bhagwan Das and the appellant over land, which was close to the house of the appellant, in which Bhagwan Das was successful, and that land was in the possession of Bhagwan Das and after his death in the possession of his sons, but this is not sufficient for rejecting his evidence. Nothing has been brought out in his cross-examination to shake his credit. In our opinion, his evidence is reliable. Nothing has been brought out in his cross-examination to shake his credit. In our opinion, his evidence is reliable. ( 13 ) JAI Pal Singh P. W. 1 corroborated the evidence of Dr. V. K. Kaushik P. W. 3 regarding the incident. It was, stated by him that his house is close to the house of the appellant. On the day of occurrence at about 6 a. m. he went to the house of the appellant on hearing noise. On reaching there he found that an exchange of abuses was taking place between the appellant and thedeceased, in which both were calling each other Bacmah. The appellant then picked up an axe and gave three or four blows with it to the deceased, as a result of which she received injuries and fell down. The appellant was arrested by him, Santa Singh P. W. 2 and Dr. Kaushik P. W. 3 and he and Dr Kaushik took the appellant and the deceased to the hospital at Hardwar and from there after, the first information report had been written by Dr. Kaushik the appellant was taken by them to P. S. Jwala Pur where the first information report was lodged by Dr. Kaushik. He (Jai Pal Singh) is a natural witness and the explanation furnished by him for his presence at the time of the incident is convincing. He is also mentioned as an eyewitness in the first information report. He also appears to be independent as there was no enmity between him and the appellant before the occurrence. His statement that he, Dr. Kaushik and Santa Singh arrested the appellant inside his house is also supported by the fact that the appellant was taken by him and Dr. Kaushik to P. S. Jwala Pur when they went there to lodge the report. Nothing was brought out in his cross-examination to shake his credit our option, his evidence is reliable. ( 14 ) SANTA Singh P. W. 2 also corroborated the statement of Dr. V K. TKaushik P. W. 3 regarding the incident. It was stated by him that his house is at a distance of about 500 feet from the house of, the appellant. On 20/2/1979 at about 6 a. m. while he was going in connection with the marriage of the d/o Pt. V K. TKaushik P. W. 3 regarding the incident. It was stated by him that his house is at a distance of about 500 feet from the house of, the appellant. On 20/2/1979 at about 6 a. m. while he was going in connection with the marriage of the d/o Pt. Ganga Prased Misra and was in front of the house of the appellant, be heard noise and went inside the house of the appellant. In the meantime Jai Pal Singh P. W. 1 and Dr. Kaushik also came there. An exchange of abuses, was taking place between the appellant and the deceased and the appellant picked up an axe and gave two or three, blows with it to the deceased, as a result of which she received injuries and fell down. The appellant was arrested by him, Jai Pal Singh and Dr. Kaushik. The appellant and the deceased were thereafter taken on a tractor from the house of the appellant to the hospital by Jai Pal Singh and Dr. Kaushik. The explanation furnished by him (Santa Singh) for his presence at the time of the incident appears to be convincing. It is noteworthy that the house of Pt. Ganga Prased Misra is close to the house of the appellant on the other side of the lane. He is also mentioned as an eyewitness in the first information report. His evidence is also supported by the medical evidence. His statement that the appellant was arrested by him, Dr. Kaushik and Jai Pal Singh at the time of the incident is supported by the fact that the appellant was taken along with the deceased by Jai Pal Singh and Dr. Kaushik on a tractor to the hospital after the incident. He is also independent witness and there was no enmity between him and the appellant before the occurrence. Nothing has been brought out in his cross-examination to shake his credit. In our opinion, his evidence is also reliable. ( 15 ) KM: Rukmini P. W. 5 is the daughter of the appellant. It was stated by her that she, the appellant and the deceased lived together in village Jagjit Pur. The deceased earned money by washing utensils at the houses of different persons and appellant plied a Thela There were quarrels between the appellant and the deceased at times. The deceased was not assaulted by any one in her presence. It was stated by her that she, the appellant and the deceased lived together in village Jagjit Pur. The deceased earned money by washing utensils at the houses of different persons and appellant plied a Thela There were quarrels between the appellant and the deceased at times. The deceased was not assaulted by any one in her presence. She was thereafter cross-examined on behalf of the prosecution and it was stated by her that on the day of occurrence she had gone to attend a wedding. On her return at about 4 a. m. she went off to sleep and woke up on hearing cries and found her mother injured. The appellant was not present in the house at that time. He came to his house after about 2 or 3 hours after the deceased had been taken by Dr. Kaushik to the hospital. Her evidence cannot be relied upon as she appears to have deposed in favour of the appellant on account of her relationship with him. It is noteworthy that her statement that the appellant came to his house 2 or 3 hours after the deceased had been taken to the, hospital by Dr. Kaushik is falsified by the fact that the appellant was taken to the Police Station as 9. 30 a. m. on 20. 2. 1979 by Dr. Kaushik and Jai Pal Singh when they went there, to lodge the first information report, which is established from the evidence of Jai Pal Singh, Dr. Kaushik and Head Constable, Maha Singh and the. G. D. entry proved by him. ( 16 ) THE result, therefore, is that the evidence of Jai Pal Singh P. W. 1, Santa Singh P. W. 2 and Dr. V. K. Kaushik P. W. 3 establishes that the appellant assaulted the deceased with an axe at the time of the incident, which resulted in her death shortly afterwards. 17. It remains to be considered whether the appellant is guilty under Section 302, I. P. C. or under Section 304 Part I, I. P. C. The question that requires determination is whether exception to Section 300 I. P. C. is applicable. It is settled Jaw that words and gestures in India may constitute grave and sudden provocation. Whether words and gestures constituted grave and sudden provocation is a question of fact to be determined in each case. It is settled Jaw that words and gestures in India may constitute grave and sudden provocation. Whether words and gestures constituted grave and sudden provocation is a question of fact to be determined in each case. In the present case, the evidence of Jai Pal Singh P. W. 1, Santa Singh P. W. 2 and Dr. V. K. Kaushik P. W. 3 indicated that an exchange of abuses was taking place between the appellant and the deceased before they entered the house of the appellant and it continued even after their arrival till the appellant picked up an axe, which was lying nearby, and gave three or four blows with it to the deceased. It is thus not known whether the deceased or the appellant began abusing first and what was the nature of the abuses given by them before the arrival of the witnesses. In these circumstances, the possibility of the deceased having begun abusing the appellant first con not be excluded. The statement of all the three aforesaid eye-witnesses that the appellant had lost his power of self-control when they arrived indicates that the deceased may have used very filthy language in abusing the appellant before their arrival. It may be mentioned that it was stated by Jai Pal Singh P. W. 1 that an exchange of abuses between the appellant and the deceased was a common feature and took place practically every day. This also indicates that the deceased may have uttered very filthy abuses at the time of the incident, which normally were not uttered by her earlier. In these circumstances, the possibility of the appellant having caused the death of the deceased while he was deprived of the power of self control by grave and sudden provocation cannot be excluded. The appellant cannot, therefore, be held guilty under Section 302 I. P. C. He is, however, guilty under Section 304 Part I, I. P. C. and deserves to be sentenced to ten years rigorous imprisonment. ( 17 ) THIS appeal is accordingly allowed in part. The conviction of the appellant under Section 302 I. P. C. and the sentence of life imprisonment awarded to him there-under are set aside and instead he is convicted under Section 304 Part I, I. P. C. and sentenced to ten years rigorous imprisonment. The appellant is in jail. He shall serve out sentence awarded to him. Appeal party allowed. The conviction of the appellant under Section 302 I. P. C. and the sentence of life imprisonment awarded to him there-under are set aside and instead he is convicted under Section 304 Part I, I. P. C. and sentenced to ten years rigorous imprisonment. The appellant is in jail. He shall serve out sentence awarded to him. Appeal party allowed. .