JUDGMENT 1. This appeal is directed against the judgment of the learned Additional Sessions Judge, Raisinghnagar dated 10.12.1991 whereby the learned Judge has held the accused- appellant guilty of the offence under Section 302 IPC and sentenced him to imprisonment for life together with a fine of Rs. 1000/- in default of payment of fine, to further undergo two months S.l. 2. Facts necessary for disposal of this appeal, briefly stated, are that on 15.5.1990 at about 4 p.m. accused Madanlal and his wife were coming from their field whereas deceased Lahor singh was coming towards village on the tractor of Devilal. It is alleged that accused Madanlal and his wife were unarmed. Madansingh's wife started abusing Lahorsingh. She also told her husband that Lahorsingh may be killed. In this, both of them asked Devilal to slop the tractor. Accused Madanlal picked up a wooden stump from a nearby place and inflicted blow with it on the head of Lahorsingh, on account of which, he bent down on the mud-guard of the tractor and Devilal ran away leaving behind the tractor on the spot. Thereafter, accused Madanlal started the tractor with the help of wrench which was lying in the tool box and he brought Lahorsingh at his house with the intention to kill him. He dragged the body of Lahorsingh from the tractor brought him down from the tractor and laid him on a cot. The relatives and well-wishers of Lahorsingh reached at the house of Madanlal and requested him to hand-over injured Lahorsingh, so that, he may be taken to the hospital for treatment, whereupon, the accused refused to handover him to them. Thereafter, Gurjantsingh lodged a first information report of this incident at police station Ghadsana at 8 p.m. It is also alleged that PW 1 Vichitrasingh and PW 2 Bhajansingh had seen the occurrence. The police came on the spot, inspected the site and prepared the site inspection memo Ex.P/1 and site-plan Ex. 1/2 of the place of occurrence, where the body of Lahorsingh was lying and post-mortem was got conducted and Ex.P/2. Post-mortem report was obtained. After usual investigation, challan was filed against the appellant in the court of learned Munsif & Judicial Magistrate, Anoopgarh, who is in his turn, committed the case to the court of Additional Sessions Judge, Raisinghnagar for trial. Post-mortem report was obtained. After usual investigation, challan was filed against the appellant in the court of learned Munsif & Judicial Magistrate, Anoopgarh, who is in his turn, committed the case to the court of Additional Sessions Judge, Raisinghnagar for trial. Charges were framed against the accused-appellant by the learned Additional Sessions Judge, Raisinghnagar. The accused did not plead guilty to charge whereupon trial ensued. 3. At the trial, the prosecution has examined as many as 11 witnesses and defence has examined only one witness Smt. Shanti. in the statement of the accused recorded under section 313, Cr.P.C. he has stated that he is innocent. The learned Addl. Sessions Judge, after hearing both the parties, found the accused-appellant guilty of the offence under Section 302, IPC and sentenced him as aforesaid and hence this appeal. 4. We have heard Mr. Sandeep Mehta, learned counsel for the accused-appellant and Mr. D.R. Bohra, learned Public Prosecutor for the State and have critically gone through the evidence recorded by the learned Additional Sessions Judge. 5. In the present case, there arc three eye-witnesses of the occurrence viz. PW 1 Vichitrasingh PW 2 Bhajansingh and PW 6 Gurjantsingh. They have stated that Devilal was driving his own tractor and he was coming towards his village. Lahorsingh deceased) was sitting on the left mud-guard of the tractor. Accused Madanlal and his wife were conrng from their field. They were totally unarmed but the accused Madanlal, picks d up a lathi (wooden stump), from nearby shop of Gopal Mistri and caused injury on the head of Lahorsingh, on account of which, the turban of the accused fed on the ground and blood started oozing out from the wound caused on the head. Thereafter he fell down in between left mud-guard and seal of the driver. Devilal left the tractor and ran away. The accused took the tractor to his own house along with injured Lahorsingh. At his house, he lifted the body of the deceased and laid him on a cot. Thereafter Bhajansingh, Budhram and Chandrabhan reached at the house of accused Madanlal and requested the accused to hand over injured Lahorsingh to them, so that he may be got treated by taking him to a hospital. The accused told them that this man will die here. Alter some-time, some villagers came there to see the deceased. They found that deceased Lahorsingh had died. The accused told them that this man will die here. Alter some-time, some villagers came there to see the deceased. They found that deceased Lahorsingh had died. PW 6 Gurjantsingh went to police station and reported (he matter. On this information, the police came on the spot and found that injured Lahorsingh was lying dead on a Col inside the Gawadi of the accused. The police prepared a site plan Ex.P/2 of the house of Madanlal accused, Panchayalama Ex.P./3 and inquest report Ex.P/4. The police made necessary recoveries of articles i.e. turban Ex.P/5, blood-stained soil Ex.P/12, pair of jutics Ex. P./13 and Ex.P14. The police look the tractor in their custody and prepared recovery memo Ex.P/15. The police brought the dead-body of Lahorsingh at Government Hospital, Ghadsana where Dr. Angad Jhorad (PW 5) declared Lahorsingh dead. Thereafter PW 5 Dr. Jhorad conducted his post-mortem and gave his report Ex.P/22. During post- mortem examination, PW 5 Dr. Jhorad noticed one lacerated wound of about 91/2 x 31/2 x 3 cms. oblique on the left parietal region of the head of Lahorsingh. The direction of the wound was below upwards and posteriorly. There was a depressed fracture of parietal bone beneath the injury, which resulted into laceration of the membranes, vessels and brain matter. There was subdural hacmatoma of about 2x2 Cms. below the injury. This injury was fatal. In the opinion of the doctor, the cause of death was shock due to excessive haemorrhage resulting into laceration of meningeal vessels and brain matter. The doctor found the injury anti-mortem caused by blunt weapon, which was sufficient in the ordinary course of nature to cause death. 6. Mr. Sandeep Mehta, learned counsel for the appellant submitted that accused Madanlal had no intention to cause death of deceased Lahorsingh nor he had knowledge that injuries caused were sufficient in the ordinary course of nature to cause death, therefore, offence under section 302, IPC is not made out. He also pointed out that only one blow by a wooden stump was inflicted on the head of the deceased and the blows were not repeated. If accused had any intention or plan to kill Lahorsingh, he would have inflicted more blows than one blow because Devilal had already run away. He also pointed out that only one blow by a wooden stump was inflicted on the head of the deceased and the blows were not repeated. If accused had any intention or plan to kill Lahorsingh, he would have inflicted more blows than one blow because Devilal had already run away. PW 3 Rajendra who is alleged to have seen the accused inflicting lathi blow on the head of injured has now stated that he saw Lahorsingh injured. He did not witness the actual infliction of injury by him. 7. In order to connect the appellant with the commission of offence, the prosecution has relied on the evidence of PW 1 Vichitrasingh, PW 2 Bhajansingh and PW 6 Gurjantsingh as eye-witnesses of the occurrence, which is to some extent supported by the testimony of PW 3 Rajendra. 8. PW 1 Vichitrasingh has categorically stated that a tractor was coming from the side of the shop of Raju and it was going towards the village. The tractor was driven by Devilal and Lahorsingh was sitting on the mud-guard of the tractor. Accused Madanlal and his wife Mst. Shanti were coming from their field. He knows them from before because they belong to his village. He saw the accused Madanlal picking up a wooden stump lying in front of the shop of Gopal Mistri and inflicting a blow on the head of deceased Lahorsingh. This infliction is supported by PW 2 Bhajansingh and PW 6 Gurjantsingh. Both of them have stated that one blow was inflicted by accused Madanlal on the head of Lahorsingh, while he was sitting on the tractor. On receiving this, his turban fell on the ground and he bent down and blood started oozing out from his head. It is only PW 1 Vichitrasingh who has stated that Madanlal's wife Mst. Shanti was also there and she was giving abuses. Thus, from the evidence of this witness, it is clear that occurrence has taken place in between the shops of Raju and Gopal Mistri at place A, B and E shown in the sitc-plan Ex.P/1 and not at the house of accused Madanlal as alleged by Madanlal and his wife. Although PW 1 Vichitrasingh has admitted that Mst. Shanti was hurling abuses but why she was doing so, has not been stated by him. Although PW 1 Vichitrasingh has admitted that Mst. Shanti was hurling abuses but why she was doing so, has not been stated by him. This has been stated by the accused in his statement under Section 313, Cr.P.C. and as also by DW 1 Mst. Shanti, who has been examined as defence witness. Both of them have stated that Lahorsingh while sitting on the tractor made disparaging remarks against Mst. Shanti, caught hold of her arm and told her to board the tractor, so that they may take her to their dhani and enjoy with her. It is nobody's case that Madanlal and his wife had any previous enmity with Devilal and Lahorsingh. It has come in the evidence that they were coming from their field totally unarmed. No person is expected to inflict such deadly blow on the head of the person for no reason. All the prosecution witnesses have tried to suppress this fact as to what impelled Madanlal to pick up wooden stump or lathi from a place in front of the shop of Gopal Mistri and why he inflicted a blow on the head of Lahorsingh and, therefore, the statement of accused Madanlal and Mst. Shanti appears to be correct that Mst. Shanti was teased by Lahorsingh and Devilal, who are rich farmers of the village and they wanted to take her being a poor lady for enjoying her to their dhani. It was because of this, that she abused them and told her husband to kill Lahorsingh who has outraged her modesty by catching hold of her hand and by inviting her to board the tractor, so that, they may enjoy her at their dhani. This was enough to give a grave and sudden provocation to any person to loose his self-control and pick up a wooden stump or lathi lying nearby to teach a lesson to a person who has outraged the modesty of his wife in his own presence, and, therefore, the infliction of blow by Madanlal on the head of Lahorsingh cannot be treated to be of any excessive use of force. Neither the accused has acted in cruel manner nor an unusual manner. Thus the occurrence took place at the spur of moment under the grave and sudden provocation. Devilal was a party to this teasing and because of this, he ran away from the place of occurrence. Neither the accused has acted in cruel manner nor an unusual manner. Thus the occurrence took place at the spur of moment under the grave and sudden provocation. Devilal was a party to this teasing and because of this, he ran away from the place of occurrence. He should have intervened and saved his companion but he ran away because of his guilty conscience. Even the prosecution could not gear up the courage to examine him as an eye-witness. Keeping in view all the facts and circumstances of this case, we are convinced that the offence of the accused does not travel beyond Section 304 Part II, IPC. Mr. Sandeep Mehta, learned counsel for the appellant placed reliance on the decision of this Court reported in Rahim Bux v. State of Rajasthan, [1990(1) RLW 171] . It was a case, in which, learned Judge observed that occurrence took place without any premeditation and incident took place at the spur of moment. The appellant took no undue advantage or acted in a cruel or unusual manner. There was no repetition of blow, therefore, the accused was held guilty of the offence under Section 304 Part II, IPC. 9. Our attention was also drawn by Mr. Sandeep Mehta on the decision of their Lordships rendered in Mansa Singh v. State of Punjab ( AIR 1977 SC 1801 ) . The facts were that the accused had suspected the deceased of committing sodomy on his son. accused lost his self-control and assaulted under grave and sudden provocation. The accused was held guilty of the offence under Section 304 Part II, IPC. 10. Reliance has also been placed on the decisions of this Court rendered in Madanlal v. State of Rajasthan [1980(1) RLW 169] and Ram Niwas v. The State, [1989 Cr.L.R. (Raj.) 394] , In both the cases, it has been held that the offence was committed under grave and sudden provocation at the spur of moment without any premeditation. The accused was held guilty of the offence under Section 304 Part II, IPC rather than Section 302, IPC. 10. Mr. D.R. Bohra, learned Public Prosecutor assisted by Mr. M.K. Garg submitted that even in a case of grave and sudden provocation, if fatal injury has resulted into death, then, offence which is made out is one under Section 304 Part I, IPC. 10. Mr. D.R. Bohra, learned Public Prosecutor assisted by Mr. M.K. Garg submitted that even in a case of grave and sudden provocation, if fatal injury has resulted into death, then, offence which is made out is one under Section 304 Part I, IPC. In this respect, he has placed reliance on the decisions rendered in Poonma v. State of Rajasthan [1983 WLN (UC) 364) and In re Govindan (1975 RU 114 ). 11. After giving our anxious and thoughtful consideration to the submissions made at the bar, we are convinced that the occurrence took place at the spur of moment without premeditation under a grave and sudden provocation. The deceased Lahorsingh asked Mst. Shanti to board the tractor for being taken to their dhani to enjoy with her. It is because of that, she abused Lahorsingh and Madanlal of course must have lost his self control and under a grave and sudden provocation, he gave one blow with a wooden stump on the head of the deceased which has proved fatal. He was not armed with wooden stump or stick but it was picked up from a nearby shop of Gopal Mistri, therefore, in the facts and circumstances of this case, we are convinced that the case against the accused cannot travel beyond Section 304 Part II, IPC. 12. In the result, the appeal is partly allowed. The conviction of the appellant recorded under Section 302, IPC and sentencing him to imprisonment for life, are set aside and instead he is held guilty of the offence under Section 304 Part II, IPC and is sentenced to 5 years R.l. together with fine of Rs. 500/- and in default of payment of fine, he will further undergo one month's S.L Result of this appeal be conveyed to the jail authorities for compliance.. *******