JUDGMENT 1. - The prosecution case, briefly stated, is that one Lekhram deceased had put up a new shop near the shop of the accused Ramnivas a few days before this incident. Ramniwas was, therefore, annoyed with him and there was a professional rivalary between them. There had been exchange of hot words between them on a few occasions. On 19-10-1981 early in the morning at about 5 A.M. Chanduram PW 1 heard some noise at the shop of his brother Lekhram. He, therefore, rushed towards the shop of Lekhram and when he was a little distance away from that shop, he saw the accused Ramnivas armed with an axe and giving blows on the person of Lekhram. One Chelaram is also alleged to have reached the spot at that time and seeing them Ramnivas took to his heels with the axe. Lekhram died on account of the injuries at the spot. Chanduram than went to Police Station Charasna and lodged a verbal report there at 8.30 A.M. The distance between the place of the incident and the Police Station is about 14 miles. Shri Sahebram PW 6 Incharge of the Police Station Charsana recorded that report vide Ex. P.1 and then he proceeded to the spot. There he inspected the site and prepared the site plan Ex. P.4 and the site inspection note Ex. P. 5. He also prepared the inquest memo of the dead body of Lekhram vide Ex. P. 6 as also a Panchayatnama Ex. P. 7. He made certain recoveries from the spot vide Ex, P. 8, P. 9, P. 10 and P. 11. The post-mortem examination of the dead body was carried out by Dr. Angad Deo PW 3 at 2 P.M. on the same day. He found the following injuries on the person of the deceased : (i) Incised wound 41/2" x 21/2" x 11/2,, on the left side of the neck horizontally. (ii) Incised wound 5" x 2" x 2 1/4" vertically on the left supra clavicle region. On opening the body he found that there was a horizontal incised wound of 1" x ⅓" on the left side of trachea. There was a fracture of the first rib posteriorly as also fracture of the left clavicle in the middle. (ii) Incised wound 5" x 2" x 2 1/4" vertically on the left supra clavicle region. On opening the body he found that there was a horizontal incised wound of 1" x ⅓" on the left side of trachea. There was a fracture of the first rib posteriorly as also fracture of the left clavicle in the middle. He found that the stomach was empty and there was semi digested food in the small intestines and fick matter in the large intestines. According to him the injuries were ante mortem and the injury on the neck was sufficient in the ordinary course of nature to cause death. He was also of the opinion that the death must have taken place between 6 to 12 hours of the post-mortem examination. He prepared Ex. P. 3 post-mortem report. 2. The accused Ramnivas was arrested on the same day at 3.30 P.M. vide Ex. P. 12. While in custody he is said to have given information regarding an axe vide Ex. P. 13 and got the same recovered vide Ex, P. 14. After completion of the investigations, a charge-sheet was submitted against the accused and he was committed to the Court of the learned Additional Sessions Judge, Raisinghnagar. A charge under section 302 IPC was framed. He pleaded not guilty and claimed to be tried. At the trial the prosecution examined seven witnesses and produced a number of documents. The accused denied the prosecution story and produced one witness in his defence. He alleged that he had been implicate, d in this case on account of suspicion. DW 1 Polasingh was produced in order to show that the house of PW 1 Chanduram was at a long distance from the place of occurrence and he could not witness the incident. The learned Additional Sessions Judge convicted the appellant under section 302 IPC and sentenced him to imprisonment for life and fine of Rs. 100/-, in default of payment of fine he was sentenced to one month's further rigorous imprisonment by his judgment dated 7-1-1983. Aggrieved of this, Ramnivas has come up in appeal. 3. We have heard the learned counsel for the appellant and the learned Public Prosecutor and have gone through the record. 100/-, in default of payment of fine he was sentenced to one month's further rigorous imprisonment by his judgment dated 7-1-1983. Aggrieved of this, Ramnivas has come up in appeal. 3. We have heard the learned counsel for the appellant and the learned Public Prosecutor and have gone through the record. After filing this appeal, an application was moved by the learned counsel for the appellant praying that either some body may be appointed to incept the site and prepare a proper site inspection note or the Investigating Officer Shri Saheb Ram may be recalled and re-examined and by order dated 11-4-1988 passed in an application for grant of parole to the appellant. It was directed that Shri Sahebram may be recalled and he may be directed to prepare a fresh site plan showing location of the house of PW Chanduram and the distance between that house and the place of the occurrence and he may also show other house intervening between two places along with their house number and distance. Accordingly Shri Sahebram inspected the site and submitted his site plan (Court Ex. 1) and the site inspection note (Court Ex. 2). He was examined by this Court on 16-11-1988 and thereafter the accused-appellant was also further examined under section 313 Criminal Procedure Code on the same day with respect to the statement of Shri Ramnivas and the documents produced by him. The appellant wanted to produce further evidence in his defence but later declined to do so vide order-sheet dated 7-3-1989. 4. We have now heard the learned counsel for the appellant and the learned Public Prosecutor and have gone through the record. 5. Two contentions have been raised before us by the learned counsel for the appellant. 6. The first contention is that the prosecution story has not at all been established beyond doubt and the only witness Chanduram PW 1 who claims to be an eye-witness is not at all a reliable witness and his presence at the spot is highly doubtful. He is not a wholly reliable witness and on the basis of his sole testimony the appellant could not have been convicted. He is not a wholly reliable witness and on the basis of his sole testimony the appellant could not have been convicted. The second contention is in the alternative to the effect that if the prosecution case is accepted as stated by Chanduram than also the appellant could not have been convicted under section 302 IPC, but he could have been convicted only under section 304 IPC. The learned Public Prosecutor on the other hand has supported the decision of the learned Additional Sessions Judge and has urged that there is absolutely no reason to disbelieve the statement of Chanduram. His presence at the spot according to nim is natural and his statement is straightforward and reliable. He also contends that the conviction of the appellant under section 302 IPC is proper. 7. We have given our careful consideration to the rival contentions and have perused the record carefully. 8. It may be stated here that the prosecution had produced PW 1 Chanduram & PW 2 Chelaram as eye- witnesses of this incident but Chelaram has turned hostile and has not supported the prosecution story. The prosecution had also tried to establish that the axe said to have recovered in pursuance of the information given by the accused was stained with human blood and, therefore, it connects the accused with the crime. But on the examination of the axe by the Serologist the stains were found to be disinte grated and its origin could not be ascertained. Therefore, it is not proved that the axe was stained with human blood and thus is not connected with the crime. Therefore, we are left with the only evidence of Chanduram PW 1. 9. The evidence of Chanduram has been assailed by the learned counsel for the appellant on a number of counts. We shall deal with these counts one by one. 10. The first ground of attack on the evidence of Chanduram is that his house is far away from the place of the incident and there are many other houses intervening so that it was not possible for Chanduram to have heard the noise alleged to be coming from near the shop of Lekhram nor was it possible for his to have reached the spot immediately and to have seen the beating being given by Ramnivas to Lekhram. In this connection he pointed out that the site plan prepared by Shri Sahebram vide Ex. P. 4 was not a correct plan of the spot and he had purposely not shown the house of Chanduram in order to conceal the fact that on account of distance he could not have heard the noise from near Lekhram's house or reached the spot immediately and that it is why he had prayed for re-calling Sahebram. He further states that now the site plan (Court Ex. 1) prepared by Sahebram i.e. to show that the house of Chanduram is quite at a long distance from the shop of Lekhram and from the cross-examination of Saheb Ram it would appear that he has now shown of the house intervening between Lekhram's shop and Chanduram's house. According to the learned counsel the two spots are separate by a continuous line of houses and there is no direct approach from Chanduram's house to Lakhram's house and one has to go by the circuit us route through the lane. In these circumstances, according to the learned counsel it was not at all possible for Chanduram to have heard the noise from Lekhram's shop nor could he have reached the spot and seen the incident. It was also pointed out by him that even in the site plan (Court Ex. 1) Shri Sahebram has not shown the spot from where Chanduram had seen the incident at the first instance. While on his way to Lekhram's shop. We have considered this aspect of the matter and have perused the statement of Shri Sahebram, Shri Chanduram as also the statement of Polasingh DW 1 and we are satisfied that the contention raised by the learned counsel that Chanduram could not have heard the noise and seen the incident is without substance. According to the site plan (Court Ex. 1) it appears that although there are some houses in a line between the house of Chanduram and the shop of Lekhram, but only one house of Makhansingh is directly in between the two and there is open space near the house of Makhansingh enabling a person to reach Lekhram's shop directly from Chanduram's house. The distance between these two spots is 237 feet as has been stated by Sahebram PW 6 on 16-11-88. The distance between these two spots is 237 feet as has been stated by Sahebram PW 6 on 16-11-88. Therefore, in the early hours of the morning at about 5 a noise raised at the shop of Lekhram could easily be audible at Chanduram's house and he could certainly have been attracted by that noise, specially when the noise was of a voice known to him. He, therefore, could have heard the noise and proceeded immediately towards the spot and it would not have taken him more than a minute or two in order to cover a distance of 237 feet and on his way also he could have seen the incident from a little distance as claimed by him. It is unfortunate that the place from where he witnessed the incident has not been shown by Shri Sahebram in the site plan Ex. P. 4 or (Court Ex. 1). It appears that his statement is correct and his presence at the spot is not only possible but natural. The statement of Polasingh DW 1 in this respect is wholly vague. He has of course stated the names of the house which fell in the line between the two spots but he does not say that there is no passage in between these houses nor does he say, that a noise raised at Lekhram's shop would not be audible at Chanduram's house. He has given the distance between Lekhram's shop and Chanduram's house to be 2 killas. That is only an approximation that distance has been measured and deposed to by Shri Sahebram. In these circumstances on this ground the statement of Chanduram cannot be discarded. According to us he is a natural witness whose presence at the spot need not be doubted and there is nothing to show that he had any reason to falsely implicate the accused. The business rivalary was only between Lekhram and Ramnivas but on that account he would not have falsely implicated the accused Ramnivas if as a matter of fact he had not seen the incident. 11. The business rivalary was only between Lekhram and Ramnivas but on that account he would not have falsely implicated the accused Ramnivas if as a matter of fact he had not seen the incident. 11. The second ground of attack on the statement of Chanduram was that if he had actually seen the incident and had removed the dead body of Lekhram from the ground and placed it on the cot, his clothes would certainly have got smeared with blood and he would certainly have produced these clothes before the police and the Investigating Officer would also have taken care to recover them, but these clothes have not been recovered by the police which goes to show that they were not smeared with blood which further shows that the witness was not at the spot. We are unable to accept this contention also because Chanduram says in unequivocal terms that his clothes had got smeared with blood in the process of his removing the injured Lekhram from the ground and placing him on the cot and he further states that he had shown these clothes to the Investigating Officer but the Investigating Officer did not recover them. The Investigating Officer Shri Sahebram does not deny that Chanduram had shown him his blood stains clothes but he only says that he does not remember. This again, therefore, no doubt is a tapes on the part of the Investigating Officer in not recovering those clothes but if the witness clearly states that this clothes were stained with blood and he had shown them to the Investigating Officer, his statement need not be doubted. 12. The third ground of attack was that it was unnatural for Chanduram to have left the dead body of his brother unattended and would have rushed to the Police Station to lodge the report. This contention of the learned counsel appears to be a more conjecture and surmises because it has not been stated by the witness that he had left the body of his brother unattended when he had gone to the Police Station to lodge the report. On the other hand, he states that Chelaram, Hansraj, Beerbal etc. had already reached the spot before he left for the Police Station. Naturally, therefore, some of these persons must have taken care of the dead body white Chanduram was aware. On the other hand, he states that Chelaram, Hansraj, Beerbal etc. had already reached the spot before he left for the Police Station. Naturally, therefore, some of these persons must have taken care of the dead body white Chanduram was aware. No cross-examination was directed on Chanduram to show that had left his brother unattended. 13. Then it was contended that admittedly one Makhanram had met Chanduram on the way when he was proceeding to Lekhram's shop after hearing the noise but that Makhanram has not been produced and the non-examination of Makhanram should make the evidence of Chanduram weak because the corroboration which was available has not been put forth. We are unable to accept this contention either. No doubt Makhan Ram's house falls on the way, had got up when Chanduram was rushing towards the shop of Lekhram but there was no talk between them, nor Makhanram came to the shop. By the time Chanduram came across Makhanram he had no knowledge of the incident and, therefore, he could not have taken it to Makhanram, nor Makhanram thought it necessary to go with him. May be, he may not have aroused by the noise and may have only been engaged in his morning routine after getting up. In these circumstances, it was not necessary for the prosecution to examine Makhanram. No adverse inference can be drawn against the prosecution of their failure to examine thus witness, nor the statement of Chanduram can be adversely affected on that count. 14. It was further urged by the learned counsel for the appellant that according to the evidence of Dr. Angad Das Seni digested food was present in the small intestine of the deceased. He has also stated that it takes nearly 5 to 6 hours for the food to pass through the small intestine. In view of this finding of the Doctor, the death of Lekhram mast have taken place after about 4 or 5 hours of his taking meals which show, must have been near about 8 or 9 P.M. on the previous night. Therefore, it appears that the deceased must have received the injuries sonic where near about or 2 A.M. and naturally, therefore, Chanduram could not have witnessed this incident and his evidence that this incident had taken place at about 5 in the morning cannot be accepted. Therefore, it appears that the deceased must have received the injuries sonic where near about or 2 A.M. and naturally, therefore, Chanduram could not have witnessed this incident and his evidence that this incident had taken place at about 5 in the morning cannot be accepted. To our minds this contention also appears to be devoid of force. The doctor has of course stated that it taken 5 to 6 hours for the food to pass through the small intestines and that may be a criteria f or arriving at the time of the death, but that criteria is not the only criteria and it itself is based on a generalization. But in this case the doctor has clearly stated that the post mortem examination of Lekhram had been started at 2 P.M. on 19-10-1981 and the death must have taken place between 6 to 12 hours before the examination. This clearly brings out that the death may have taken place near about 5 or 6 A.M. as stated by Chanduram. He, therefore, was in a position to witness the incident. No clarification was asked from Dr. Angad Deo in this respect by the learned counsel for the accused. 15. Yet another contention of the learned counsel for the appellant was that according to the inquest report the deceased was lying on the cot with his right hand folded, and lying near the right eye; where as the left hand was on the upper side. The ness of the deceased were folded. Lacking to this condition it appears, urges the learned counsel that the deceased must have been attacked while he was sleeping on the cot otherwise it could not be expected that Chanduram would have placed the dead body of his brother in this position after lifting it from the ground after receiving the injuries. We are unable to agree with this contention, also. If the deceased had been attacked with an axe while he was lying asleep on the cot he could not have remained in the position in which he was found at the time of the inquest report and at the first blow itself he would have turned from his side and could not have continued lying in the position mentioned above. Chanduram does not say that he had placed the dead body of his brother on the cot. Chanduram does not say that he had placed the dead body of his brother on the cot. What he says is that after receiving the injuries Lekhram had fallen down and he lifted him and placed him on the cot. This may be while Lekhram was still alive and since Chanduram alone had lifted the body he must have dropped it on the cot and may not have strightened it as he would have done. In case, Lekhram had already breathed his last by that time. 16. Lastly, it was also contended that in the inquest report Ex. P. 6 the presence of Chanduram is not mentioned. Chanduram was really an eye-witness and was present when the police was investigating the case his presence would certainly have been mentioned in the inquest report. Reliance in this connection has been placed on 1935 Cr. L J. page 18 (Savia v. The State). However, in the facts and circumstances of this case, this contention does not appeal to us. It may be mentioned that before the inquest report was prepared the site plan and the site inspection not were already prepared in which the name of Chanduram as the complainant has clearly been mentioned and in the report Ex. P. filed by Chanduram it has already been disclosed that he had witnessed the incident. In these circumstances, the mere absence of the name of Chanduram as an eye-witness in the inquest report does not lead us to the conclusion that he was not an eye witness at all and is falsely posing as such. In Savia's case (supra) the statement of solitary witness was uncorroborated and suffered from serious infirmities in itself, and in these circumstances; the absence of his name in the site inspection note and memo was taken to be yet another circumstances to discard his evidence. This is not the case here. As already stated above, the presence of this witness is natural. His statement is clearly straight forward and he has not been discredited on any other ground. 17. Thus we are clearly of the opinion that the evidence of Chanduram PW 1 can safely be relied upon. This is not the case here. As already stated above, the presence of this witness is natural. His statement is clearly straight forward and he has not been discredited on any other ground. 17. Thus we are clearly of the opinion that the evidence of Chanduram PW 1 can safely be relied upon. It will not be out of place to mention that although Chelaram has turned hostile and has not achened to the statement he had given before the police, in evidence before the court he also admits that he had reached the spot and immediately on his reaching there Chanduram who was already present had told him that it was the accused Ramnivas who had inflicted the injury on the person of his brother Lekhram. He also admits that he had heard the verbal altercation between Lekhram and Ramnivas from his house and then he had reached the spot. He further admits that he had seen Chanduram placing the body of Lekhram on the cot and at that time none else was present. Thus to a great extent he has corroborated the testimony of Chanduram. On these aspects the testimony of the Chelaram has not been challenged in the cross-examination and, therefore, there is no reason to doubt this part of his statement. 18. Chanduram's evidence is further corroborated by the medical evidence as the two iojuries alleged by him have been found on the person of the deceased by Dr. Angad Deo. From this evidence it is established beyond doubt that it was the accused Lekhram who had inflicted the injuries on the person of Lekhram. 19. The next question which than falls for consideration is about the nature of the offence. Having regard to all the facts and circumstances of the case we are inclined to accept the contention of the learned counsel that the offence does not fall under section 302 IPC but must fall under section 304 IPC. In this connection it may be stated that Chanduram had been attracted to the scene of the occurrence on account of some noise. This means that the quarrel had started before Chanduram was attracted to the scene of the incident. In this connection it may be stated that Chanduram had been attracted to the scene of the occurrence on account of some noise. This means that the quarrel had started before Chanduram was attracted to the scene of the incident. Further Chandram stated that he had heard the words "Maar Doonga" "Maar Doonga" and this suggests that the person who uttered these words "Maar Doonga" "Maar Doonga" must have been provoked by the other person otherwise he would not have uttered these words so loudly. Again, it is an admitted cure of the prosecution that verbal altercation had been taking place between Lekhram and the accused ever since Lekhram opened the shop in the vicinity of the shop of the accused about 12 to 13 days before this incident. The shops of Ram Nivas and Lekhram are situated opposite each other across the road, and the possibility that in the morning when both of them got up the verbal altercation between the started but it is not known who was it who initiated that verbal altercation and the possibility cannot be ruled out that it may have been the deceased himself because only then the accused must have threatened to kill him & on the sudden provocation thus given by the deceased the accused must have lost control over himself and in the spur of the moment without any premeditation pounced upon the deceased with an axe and happened to strike the two blows. However, if the accused really had the intention of killing Lekhram then there was no necessity for him to have picked of up the verbal altercation first and he could have taken the opportunity of striking the blows while Lekhram was already asleep in the night. The presence of the cot outside the shop does suggests that Lekhram must have been sleeping out side the shop in the night and Ramnivas need not have wait for the whole night to kill him and to have chosen the early hours of the morning when people generally get up. The story of scuffle between the two is still further probablised because both of them were quite young. The story of scuffle between the two is still further probablised because both of them were quite young. The deceased Ramnivas had been estimated to 20 years of age whereas the accused has given out his age to be 21 years when he was examine before the court on 23rd of November 1982 and the incident bad taken place on 19-10-1981. He also does not appear to have taken any undue advantage or acted in a cruel or any unusual manner because when provoked by the deceased he must have taken up the axe lying at his shop and struck just two blows on the person of the deceased. As already stated above Chandu Ram had reached the spot after the quarrel had already started, and ought we know a grappling may have taken place between Ramnivas and Lekh Ram earlier. Looking to all these circumstances we are of the opinion that since the genesis of the story not clearly brought out by the prosecution, the benefit to this extent should go to the accused and he must have been convicted only under section 304 Part II IPC instead of section 302 IPC. Looking to all the circumstances of the case and the business rivalary between the parties, we are of the opinion that a sentence of 7 years' R.I. and a fine of Rs. 100/- would must the ends of justice. 20. We, therefore, partly allow the appeal, the conviction of the appellant Ramnivas under section 302 IPC and the sentence passed thereunder is set aside, instead he is convicted under section 304 Part II IPC and is sentence to seven years' R.I. with a fine of Rs. 100/-. In default of payment of fine he will further undergo rigorous imprisonment for one month. The period for which he has remained in custody during investigation, inquiry and trial and pendency of the appeal shall be set off against the total sentence.Appeal partly allowed. *******