JUDGMENT 1. 1. This appeal is directed against the judgment of the Sessions Judge, Jhalawar, dated June 5, 1987 by which the appellant, Mangiya alias Mangilal, has been found guilty of the offence under Section 302, IPC, and sentenced to imprisonment for life. 2. Briefly stated the facts of the case are that on a report lodged by Manna (PW 1) on 12.6.86 at about 7.30 A. M. at police station Bhalta, a criminal case was registered against the accused-appellant alongwith his brother, Nathu. It had been alleged in the report that on the day or incident took place on 11.6.86 at about 5 P. M., when the informant alongwith Rodu, & Amra were standing in front of the house of Rodu, the appellant alongwith his brother Nathu came there and that, Khema (deceased) also reached there and asked Mangiya to redeem his three rafters said to have been derived from him (Khema) by the appellant during cremation process of his father, and thereby the appellant blurted with exclaiming "come forward, to redeem his rafters". Thereafter the accused went to his house and came out of the house duly armed with `gandasi' and immediately then inflicted blow on the head of the deceased, Khema. It had further been alleged in the report that the co-accused, Nathu, also inflicted lathi blows on the head of the deceased. And, both, the appellant-Mangiya & Nathu filed towards village. As a result of the injuries, Khema died on the spot. Manna accompanying with his brother Prabhulal reached the police station to lodge the aforesaid report. Thereupon, police proceeded with investigation. After completion of investigation, a challan was filed against the accused-appellant and his brother, Nathu. 3. After due trial, the learned Sessions Judge convicted and sentenced the accused-appellant as mentioned at the very outset, but acquitted co-accused Nathu holding that specific overt act alleged against Nathu has not been proved by the prosecution beyond reasonable doubt; and also that, the act as against him (Nathu) has not been supported by the statement of the doctor who conducted post mortem report. Such a finding has been recorded by the Sessions Judge on the basis of material on record and after appreciation of the evidence of prosecution witnesses who were 12 in numbers, out of them Mannalal (PW 1), Prabhulal (PW 2), Rodu (PW 3), Amra (PW 8) have been produced as eye witnesses of the occurrence. The learned trial Court disbelieved the statement of Prabhulal (PW 2) but believed the statements of Mannalal (PW 1), Rodu (PW 3) & Amra (PW 8). 4. We have heard Shri N.A. Naqvi learned Amicus Curiae, and Shri O. P. Sharma learned Public Prosecutor. We have also gone through the case file. 5. Learned Amicus Curiae rightly did not challenge the findings arrived at by the trial Court thereby the accused-appellant has been held guilty of inflicting blow with gandasi on Khema resulting in death, on the basis of the testimony of ocular witnesses duly corroborated by medical evidence. He confined his submission only to the extent of nature of the offence made out from the proved facts. And, according to him, in view of the facts and circumstances of the case, only offence which can be said to have been proved against the accused-appellant is of section 304, Second Part, IPC. 6. Learned Public Prosecutor, on the other hand, contended that in the facts and circumstances of the case, it cannot be disputed that the accused-appellant did intend to commit murder of the deceased and in pursuance of that intention, Gandasi was brought by the appellant from his house and thereafter he inflicted blow with the said lethal weapon. So, according to the learned Public Prosecutor, the accused-appellant has rightly been convicted by the trial Court. 7. Having regard to the rival contentions of the parties and on an over all view of the conspectus of the entire evidence on record, it can easily be condensed that the crucial point for consideration is whether exception 4 to Section 300, IPC is applicable to the facts and circumstances of the case. Exception 4 to Section 300, IPC says as under : "Exception 4. - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner." 8. Exception 4 to Section 300, IPC says as under : "Exception 4. - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner." 8. According to the prosecution case, incident took place due to the reason that rafters alleged to have been borrowed by the accused-appellant for cremation of his father were demanded back by the deceased which enraged the appellant who in turn went to the house and came armed with `gandasi' and inflicted blow on the head of Khema which resulted into his death. As against this, the defence set up by the accused-appellant was that some goat were stolen by Bhanwarlal, Bidaru and deceased, Khema and on the intervention of the appellant, aforesaid persons were compelled to pay Rs. 600/- to Ramsingh-alleged owner of the stolen goats, thereby were animus with them and so in order to revenge, the deceased alongwith other persons after intoxication came at the house of the accused-appellant and hurled abuses. But, on persuasion by the appellant for stopping the hurling of abuses, the deceased started beating to the appellant and at that time, they grappled with each other. And it was in the process of the grappling that injury caused on the deceased at the instance of some one and might be, at the instance of Manna & Champa who had also thrown lathi on the person of the accused-appellant. 9. This leads us to see as to which of the plea is probable. It is admitted case of the prosecution that the appellant and co-accused-Nathu are the real brothers and the rafters were used in the cremation of the appellant's father and the demand to redeem the rafters enraged the appellant. But, we fail to understand as to why the only appellant became furious on account of the demand to redeem rafters whereas similar provocation should have been there with Nathu-real brother of the appellant. However, no specific overt-act has been initially alleged against Nathu and his subsequent act has been disbelieved by the trial Court and as such, he has been acquitted. This circumstance casts aspersion in the prosecution story and it can be said that this part of the prosecution story does not appear to be probable. However, no specific overt-act has been initially alleged against Nathu and his subsequent act has been disbelieved by the trial Court and as such, he has been acquitted. This circumstance casts aspersion in the prosecution story and it can be said that this part of the prosecution story does not appear to be probable. Other circumstance which makes aforesaid prosecution version doubtful is that if the rafters were derived from Khema by the appellant for the purpose of cremation then its demand to redeem rafters could not have enraged the appellant because if the fact of deriving rafters from Khema was true then it can be said that the rafters were given by the deceased-Khema for sacred funeral pyre purpose. In that situation, the appellant could not have dealt with the deceased in cruel manner. Moreover, there is no evidence from the prosecution side that at what time or before how many days, months, or years, the rafters were derived by the appellant. Thus, we are of the opinion they such a heinous offence could not have been committed on a very petty trivial matter. For these reasons, in our opinion, explanation given by the appellant for the cause of incident appears to be probable. 10. Although the learned Amicus Curiae did not assail credibility of the evidence of the eye witnesses on the point of inflicting gandasi blow by the appellant on the head of the deceased but, still we have perused the statements of witnesses to meet the ends of justice and we are of the view that the testimony of Mannalal (PW 1), Rodu (PW 3) and Amra (PW 8) is not doubtful. In these circumstances, it is not necessary for us to re-appraise the entire evidence further more. 11. We are unable to accept the prosecution version that merely because the deceased demanded rafters back from the appellant, the accused had given blow on his person with intention to commit his murder. In the very nature of things as per the facts that the accused as well as deceased belong to the cultivating class of the village and are village rustics, it is probable that there was, in all probability, fight between the accused and the deceased and this must have happened because of the facts stated by the appellant in his statement under Section 313, Cr. P. C. (as quoted above) and in that process, the deceased might not have made an attempt to assault the appellant but something was there on the part of the deceased which enraged the appellant resulting sudden fight. We are of the opinion that only inference which can be drawn in the facts and circumstances of the case that the act of appellant was without pre-medition and the incident took place at the spur of moment and something was there on the part of the deceased and because of that reason, the accused was deprived of the power of self control by grave and sudden provocation. We, therefore, feel that exception (1) as well as exception (4) of Section 300, IPC apply in the instant case. 12. The aforesaid conclusion can also be recorded on this circumstance that admittedly the accused-appellant was in or at his house on the day of incident and the complainant-Mannalal (PW 1) & Amra (PW 8) went there at the house of the appellant alongwith deceased. Therefore, obviously, it could not have been pre-supposed by the appellant that the deceased alongwith other persons would reach at his house or that he was having an intention to commit murder of Khema. In these circumstances, only inference which can be drawn is that it was the complainant party who went at the house of the accused-appellant and there, incident took place, and in that incident, certainly unreasonable conduct of the complainant party could not be ruled out because it was not the case of prosecution that the appellant ever intended to commit murder of the deceased prior of this incident also. We lend support from the decision in State of Rajasthan v. Kantilal, 1978 RLW p. 230 and Brij Mohan v. State of Rajasthan, 1986 Cr. L.R. Raj. p. 699 . In addition to the decision of the Supreme Court in Kartar Singh v. State of Punjab, AIR 1988 SC 2122 . 13. In such state of affairs, the injury was caused by the appellant without any pre-meditation in a sudden fight, and heat of passion and at the spur of moment. It as just possible that the appellant could have lost power of self control and thereby inflicted a blow on the person of deceased and it is a case of single blow. It as just possible that the appellant could have lost power of self control and thereby inflicted a blow on the person of deceased and it is a case of single blow. If the appellant would have intended to commit murder of the deceased, he would have repeated blow on the person of the deceased. This is also an important circumstance so as to infer that the act of the accused is not covered by the offence of Section 302, IPC. It has not been disputed that the deceased died due to the injuries sustained on his person at the hand of the accused. The doctor's opinion also shows that the accused died on account of the injury on his head, and further was sufficient to cause death of the deceased. 14. In view of the facts and circumstances discussed above, we are of the opinion that the prosecution evidence does not establish the manner in which the incident took place and, therefore, it could not have been held that the incident did not take place in the manner suggested by the appellant and in that situation it could not be held that he inflicted this injury with an intention to cause death. At best, knowledge could be imputed to him that it may result in death. In view of this, conviction of the appellant under Section 302, IPC, could not be sustained. The conviction of the appellant is, therefore, altered to Section 304 part II, of the Penal Code. 15. In the result, we partly allow the appeal of accused, Mangia alias Mangilal. His conviction & sentence under Section 302, IPC, are set aside and instead he is convicted under Section 304, Part II, IPC. He is sentenced to rigorous imprisonment for the period of five years. The accused is in custody and shall serve out the sentence. The period of detention undergone by him during investigation, enquiry and trial shall be set off against the term of imprisonment imposed on him.The office shall comply with forthwith.Appeal partly allowed. *******