Judgment K.S.Garewal, J. 1. Lakhwant Singh (36) has filed this appeal against his conviction for the culpable homicide of his brother Narain Singh for which he was tried, convicted and sentenced by the learned Sessions Judge, Sangrur, vide judgment dated September 10, 1990, and ordered to undergo rigorous imprisonment for five years and to pay a fine of Rs. 3,000/- under Section 304 (Part-II) of the Indian Penal Code. Feeling aggrieved, the appellant has filed the present appeal. 2. Lakhwant Singh appellant and his brother Narain Singh and their respective families lived in the family house outside village Kaheru. They both had separate residences but shared the verandah and the courtyard. Their parents Chainchal Singh and Darshan Kaur lived with the appellant. Chainchal Singh owned 18 acres of land, which had been divided into three equal shares. One share was retained by himself while the other two shares had been given to the appellant and the deceased, respectively. The prosecution alleged that since Chainchal Singh lived with Lakhwant Singh, he had given his own share also to Lakhwant Singh. Narain Singh deceased had asked Lakhwant Singh to divide their fathers share into two equal shares, but Lakhwant Singh was not agreeable. For this reason the brothers often quarrelled with each other. 3. On October 23, 1989, Narain Singhs father-in-law Pargat Singh Bajwa of Nabha had come to visit his daughter Jaswinder Kaur and son-in-law Narain Singh deceased. At about 7.30 PM, Pargat Singh Bajwa, Jaswinder Kaur and Narain Singh were sitting in the verandah of their house after taking their meals. After some time Narain Singh switched off the light of the court-yard. Lakhwant Singh appellant switched it on again and called out to Narain Singh that since he was claiming half of the land, he would settle the account once for all. After saying this the appellant gave a Kulhari blow towards Narain Singh which hit him on his left arm. Whereafter he gave two more Kulhari blows on the right and left sides of Narain Singhs head as a result of which he fell down on the ground. Jaswinder Kaur, Chainchal Singh and Pargat Singh Bajwa raised alarm and during the ensuing commotion Lakhwant Singh escaped from the spot with his kulhari. Narain Singh was evacuated by Chainchal Singh and Pargat Singh Bajwa in a tractor trolley belonging to one Bhagwan Singh and taken to civil hospital Dhuri. Jaswinder Kaur, Chainchal Singh and Pargat Singh Bajwa raised alarm and during the ensuing commotion Lakhwant Singh escaped from the spot with his kulhari. Narain Singh was evacuated by Chainchal Singh and Pargat Singh Bajwa in a tractor trolley belonging to one Bhagwan Singh and taken to civil hospital Dhuri. 4. Narain Singh was medico-legally examined by Dr. Sham Lal Goel PW2 at about 8.50 PM and was found to have the following injured on his person : "Incised wound 15 cm x 3 cm on the left parietal region of the skull situated 6 cm above the left ear pinna 9 cm away from mid line, 4 cm above the hair line. Fresh bleeding was present. Brain matter coming out. Underlying bones fractured. 2. Incised wound 15.5 cm x 2.5 cm on the frontal region of the skull on right side. Wound started at the hair line and extended upward towards the parietal region of the skull. Wound was situated 3 cm away from the mid line, 5 cm above the right eye brow. Fresh bleeding was present. Underlying bone fractured. Brain matter was coming out. 3. Incised wound 4 cm x 3 cm on the left fore-arm on medial aspect. Bone deep. Fresh bleeding was present. Wound was situate 10 cm above the wrist joint. 4. Abrasion 4 cm x 4 cm on the dorsal aspect of the left hand and extending towards the dorsal aspect of the mid-finger and fore-finger". 5. Injuries 1 and 2 were declared dangerous and their duration was within six hours. Narain Singh succumbed to his injuries at 9.20 PM and report in this respect was sent to S.H.O. Police Station, Dhuri, through ruqa Ex. PE. It was to the effect that Narain Singh of Kaheru, who had been brought to the hospital in an injured condition, had subsequently died at 9.20 PM. This report was received by Inspector Parshotam Singh, who immediately proceeded to Civil Hospital Dhuri, where he met Pargat Singh Bajwa. 6. The investigator recorded Pargat Singh Bajwas statement Ex. PA and sent it to the police station and on its basis First Information Report Ex. PA/2 was registered at Police Station Dhuri at 10.50 PM. 7. This report was received by Inspector Parshotam Singh, who immediately proceeded to Civil Hospital Dhuri, where he met Pargat Singh Bajwa. 6. The investigator recorded Pargat Singh Bajwas statement Ex. PA and sent it to the police station and on its basis First Information Report Ex. PA/2 was registered at Police Station Dhuri at 10.50 PM. 7. The investigation in this case was conducted by Inspector Parshotam Singh, who prepared the Inquest Report on the dead body of the deceased and then sent the dead body for post mortem examination, which was conducted by Dr. Sham Lal Goel (PW2) on October 24, 1989 at 10 AM at Civil Hospital, Dhuri. The Medical Officer found the following injuries on the dead body :- "1. Stitched wound present on the left parietal region on the skull 15 cm in length away from the mid line, 4 cm above the hair line. 18 stiches were present. 2. Stitched wound 15.5. cm in length present on the frontal region on the skull extending towards the parietal region of the skull on the right side. Wound started at the hair line and extended upwards towards the parietal region of the skull, 3 cm from the mid line, 5 cm above the right eye brow. Stitches 16 in number were present. 3. Stitched wound 4 cm in length on the left fore-arm on the medial aspect 10 cm above the writ joint, 4 stiches were present. 4. Abrasion 4 cm x 4 cm on the dorsal aspect of the left hand extending towards the middle and fore-finger of hand." 8. According to the doctor on dissection of injury 1, the underlying bone was fractured, brain matter was lacerated and bleeding was present. On dissection of injury 2 underlying bone was also fractured, brain matter was lacerated and clotted blood was present. In the opinion of the Medical Officer, injuries 1 and 2 had led to death as these injuries were sufficient to cause death. The time that elapsed between injuries and death was within six hours and that between death and post mortem, twelve and a half hours. 9. The investigator inspected the spot on October 24, 1989 and took into possession blood-stained earth. He also prepared a site plan of the place of occurrence and recorded the statements of the witnesses. The time that elapsed between injuries and death was within six hours and that between death and post mortem, twelve and a half hours. 9. The investigator inspected the spot on October 24, 1989 and took into possession blood-stained earth. He also prepared a site plan of the place of occurrence and recorded the statements of the witnesses. On October 27, 1989 A.S.I. Sampuran Singh PW7 received an intimation that the appellant had surrendered before the learned Judicial Magistrate, Dhuri and had been sent to judicial lock up. Police remand of the appellant was obtained and on October 29, 1989 he was subjected to interrogation on the basis of which Kulhari was recovered from his possession and it was found to be stained with blood. After the completion of the investigation the appellant was sent for trial. At the trial charge was framed against the appellant under Section 302 I.P.C. for the murder of his brother Narain Singh, to which he pleaded not guilty. At the trial the prosecution examined Captain Pargat Singh Bajwa PW1, Dr. Sham Lal Goel PW2, Jaswinder Kaur PW 3, Kashmira Singh PW4, Harmeshinder Singh PW5, before whom the appellant was alleged to have made an extra judicial confession before his production in court, Jaswinder Singh PW 6, A.S.I. Sampuran Singh PW 7 and Parshotam Singh, S.H.O. PW 8. 10. On examination under Section 313, Cr.P.C. the appellant gave the following version of the incident :- "At about 8 P.M. my wife Charanjit Kaur had gone to close the outer door. Soon after her going I heard the shouts "Lutly, Lutly". I went outside from my room and picked a Kulhari from the Verandah. I found that Narain Singh, deceased, was holding the left arm of my wife and taking her forcibly towards the kitchen in order to rape her. She was trying to release herself by pulling the left hand and the fingers but he did not release her. In order to rescue her I gave a mild blow on his left arm, but even then he did not release her arm. I gave him further two blows on his head as a result of which he fell down. P.Ws. Jaswinder Kaur and Pargat Singh were not in the house. They were subsequently called by my father by sending a car. This incident was witnessed by my father, my wife, and sister-in-law of my father. I gave him further two blows on his head as a result of which he fell down. P.Ws. Jaswinder Kaur and Pargat Singh were not in the house. They were subsequently called by my father by sending a car. This incident was witnessed by my father, my wife, and sister-in-law of my father. Jaswinder Kaur (PW) was at Nabha due to abortion case and subsequently suffering from shock and weakness. None of us had a servant, so she was not able to do the domestic work as cooking and other odd works looking after animals, as such, she was staying at Nabha. Gurdeep Singh is a relation of PW Pargat Singh and he was a friend of A.S.I. Sampuran Singh, who was posted in Police Station, Dhuri, and who has done the entire investigation. In collusion with him, they wanted to finish me, so I firstly tried to surrender myself in the court of Magistrate Ist Court, Dhuri, but I was not successful and subsequently I surrendered in Dhuri Court. I have been roped in this case falsely as Pargat Singh and Jaswinder Kaur (P.Ws.) wanted to rob my parents of their land and I was a stumbling block in they way." 11. When Lakhwant Singh was called upon to enter his defence, he examined his wife Charanjit Kaur DW1 and his Aunt (Massi) Gurdip Kaur DW2 and closed the evidence. 12. Learned Sessions Judge, Sangrur, came to the conclusion that Pargat Singh Bajwa PW1 and Jaswinder Kaur PW3 were not present in the house and did not witness the occurrence. The extra judicial confession allegedly made by the appellant before Harmeshinder Singh PW5, was also disbelieved. Likewise the recovery of Kulhari was also disbelieved and it was held that the disclosure statement made by the appellant was a piece of crude padding by the investigators. 13. Nevertheless quite surprisingly the learned Sessions Judge accepted the defence plea and held that it was quite convincing and probable, in the given circumstances which suggested that the appellant had caused injuries to Narain Singh under grave and sudden provocation when his wife was being molested by the deceased with the intention of committing rape on her. Accordingly the appellant was convicted under Section 304 (Part-II) of the Indian Penal Code for having caused the death of his brother Narain Singh. Accordingly the appellant was convicted under Section 304 (Part-II) of the Indian Penal Code for having caused the death of his brother Narain Singh. The appellant was sentenced to rigorous imprisonment for five years and pay a fine of Rs. 3,000/- and in default of payment of fine to further undergo rigorous imprisonment for one year. 14. Criminal Appeal 182-DBA of 1991 (State of Punjab v. Lakhwant Singh), Criminal Appeal 364-SB of 1990 (Lakhwant singh v. State of Punjab) and Criminal Revision 303 of 1991 (Pargat Singh v. Lakhwant Singh) have been respectively filed by the State against the acquittal of the appellant for the charge of murder punishable under Section 302 of the Indian Penal Code, by the appellant against his conviction under Section 304 (Part-II) of the Code and by the Pargat Singh complainant for revision of conviction from one under Section 304 (Part-II) to one under Section 302 of the Code. 15. The learned counsel for the appellant had argued that the trial court had rightly disbelieved Pargat Singh PW1 and Jaswinder Kaur PW3 because had they been present, they would have definitely intervened when the appellant attacked Narain Singh. In fact Pargat Singh and Jaswinder Kaur were at Nabha, at a distance of 26 Kms. from Dhuri and they reached Dhuri after Narain Singh had been brought to the Civil Hospital there. Similarly, Jaswinder Kaur could not be believed because as a dutiful Indian wife, she would have accompanied Narain Singh to hospital had she been present but according to MLR Narain Singh was accompanied only by his father Chainchal Singh. In fact she had gone to meet her parents at Nabha as she was five months pregnant. She was admitted in hospital on September 18, 1989 to undergo abortion, whereafter she became weak. This circumstance seemed to suggest that Jaswinder Kaur had remained behind at Nabha and was not present at Kaheru, where the occurrence took place on October 23, 1989. Another circumstance which seemed to rule out the presence of Jaswinder Kaur was that no milk had been found in the stomach of the deceased, even though Jaswinder Kaur had deposed that she had given milk to injured Narain Singh about 10 minutes after the occurrence. Another circumstance which seemed to rule out the presence of Jaswinder Kaur was that no milk had been found in the stomach of the deceased, even though Jaswinder Kaur had deposed that she had given milk to injured Narain Singh about 10 minutes after the occurrence. Furthermore, had Jaswinder Kaur been present, she would have definitely attended to her injured husband, who had bled profusely and in the process Jaswinder Kaurs clothes would have got stained with her husbands blood. As regards the extra judicial confession being allegedly made by the appellant before Harmeshinder Singh PW5 and the disclosure statement made by the appellant to the investigator leading to the recovery of the Kulhari, the argument was that the trial Judge had correctly appreciated the prosecution evidence and concluded that the extra judicial confession and the recovery had not been established. 16. The State while opposing the appeal filed by Lakhwant Singh also pressed for setting aside Lakhwant Singhs acquittal under Section 302, I.P.C. It was argued that the prosecution case was a fool-proof one in which Lakhwant Singh had attacked his brother Narain Singh with a Kulhari in the presence of Narain Singhs wife Jaswinder Kaur and father-in-law Pargat Singh, who were examined as PW3 and PW1 respectively at the trial. It was because the appellant had found that there was no escape from the prosecution case, the plea of grave and sudden provocation had been raised. It was also submitted that the motive in the case was a strong one as Chainchal Singh had given the deceased only 6 acres of land and kept 12 acres for himself and Lakhwant Singh. This unfair distribution of land must have been resented by the deceased and on this account the relations between the two brothers were probably not good. Therefore, a slight altercation over the switching off the light had enraged Lakhwant Singh, he picked up a Kulhari and gave two severe blows on Narain Singhs head. The reasons given by the learned Sessions Judge for holding that Pargat Singh and Jaswinder Kaur did not witness the occurrence were not valid. Similarly, the rejection of the extra judicial confession and the recovery of the Kulhari had not been valid grounds. 17. The reasons given by the learned Sessions Judge for holding that Pargat Singh and Jaswinder Kaur did not witness the occurrence were not valid. Similarly, the rejection of the extra judicial confession and the recovery of the Kulhari had not been valid grounds. 17. It would be necessary to reappraise the prosecution evidence in order to determine the various contentions raised by the learned counsel in support of the appeal against the acquittal of Lakhwant Singh under Section 302 I.P.C. and the appeal by Lakhwant Singh against his conviction under Section 304 (Para-II), I.P.C. The prosecutions stand was that the occurrence was witnessed by deceaseds wife Jaswinder Kaur PW3 and her father Pargat Singh PW1. At the outset, it would be necessary to note the time at which certain crucial events had taken place. According to the F.I.R. the occurrence had taken place at 7.30 PM at Kaheru a distance of 2 kms. from Police Station Dhuri. It may be mentioned that Dhuri is a medium sized town and the distance of Civil Hospital Dhuri is also about 2 kms. from Kaheru, as per the statement of Pargat Singh PW1. The evacuation of Narain Singh in Bhagwan Singhs tractor trolley was done half an hour after the accused had fled the spot. It had taken about 15 minutes for the injured to reach the hospital and it took further period of 10 to 15 minutes for the Medical Officer to attend on the injured. According to the Medico Legal Report Ex. PD, Narain Singh was medico-legally examined by Dr. Sham Lal Goel PW2 at 8.50 PM. Narain Singh died at 9.20 PM. Intimation regarding his death was sent to Police Station Dhuri, whereupon Inspector Parshotam Singh reached Civil Hospital Dhuri and recorded the statement of Pargat Singh, which concluded at 10.45 PM. The F.I.R. was registered at 10.50 PM and Special Report was delivered to Judicial Magistrate Dhuri at 12.30 AM on October 24, 1989. From the above it would appear that the case had been promptly reported to the police and this indicates that Pargat Singh was present at Kaheru and had accompanied the injured to the hospital. After the injured succumbed to the injuries, the investigator reached the spot in no time and recorded the statement of Pargat Singh. From the above it would appear that the case had been promptly reported to the police and this indicates that Pargat Singh was present at Kaheru and had accompanied the injured to the hospital. After the injured succumbed to the injuries, the investigator reached the spot in no time and recorded the statement of Pargat Singh. A Special Report was also delivered to the area Magistrate within an hour and a half from the time when the case was registered. Therefore, Pargat Singh would appear to be a truthful witness. 18. It also deserves to be noted that according to the F.I.R. Chainchal Singh had joined Jaswinder Kaur and Pargat Singh in raising alarm. Chainchal Singh and Bhagwan Singh had accompanied Pargat Singh and taken Narain Singh to the hospital. This would establish that if the presence of Pargat Singh and Jaswinder Kaur is ruled out, Narain Singh would still have been evacuated to the hospital by his father Chainchal Singh and Bhagwan Singh. Therefore, accused had tried to build up the argument that Pargat Singh and his daughter were not present. In any event it seems Chainchal Singh must have reached the spot immediately after the alarm was raised. Chainchal Singh is mentioned as the person who accompanied the injured when medico-legal examination was conducted by the Medical Officer and M.L.R. Ex.PD was prepared at 8.50 PM. It may be noted that Pargat Singhs wife and his wifes sisters husband Gurdip Singh had also reached the Civil Hospital Dhuri by 11 PM. Dhuri and Nabha were well connected by road and train. Any astute investigator would have preferred that Chainchal Singh be kept only as a witness and not as the first informant on the basis of whose statement the case should be registered. The reason being that Chainchal Singh may not support the prosecution at the trial because after the loss of a son, he may not come forward to depose against his surviving son with whom he lived. Therefore, even though Chainchal Singh was available and his presence was established at the hospital the investigator dropped Chainchal Singh and instead selected Pargat Singh PW1 as the first informant. 19. Therefore, even though Chainchal Singh was available and his presence was established at the hospital the investigator dropped Chainchal Singh and instead selected Pargat Singh PW1 as the first informant. 19. One of the main arguments of the learned counsel for the accused- appellant was that Jaswinder Kaur had suffered an abortion at Nabha on September 18 and for this reason must have stayed back to remain with her parents to undergo medical follow up. Apart from what has been established through cross-examination, no medical record was produced by the accused in support of this fact even though record regarding the follow up being given to Jaswinder Kaur would have been produced. It has been submitted that Jaswinder Kaur was five months pregnant when the said abortion took place. There was sufficient time for Jaswinder Kaur to recover and it cannot be accepted that she would have stayed at Nabha until October 23 which was 36 days after the abortion. This is enough time for a woman to recover from the type of medical problem for which she had been treated. It is natural for every woman to return to her own home and attend to her own affairs instead of lingering on with her parents. The argument of the appellant does not cut much ice. Jaswinder Kaur must have been present in Kaheru on the evening of the occurrence. Her father Pargat Singh had come to visit her. The prosecution case was that Pargat Singh, Jaswinder Kaur and Narain Singh had just eaten when the occurrence took place at about 7.30 P.M. After the occurrence, Chainchal Singh seemed to have taken control of the situation because he was more directly affected by the occurrence than Pargat Singh, which explains why Pargat Singhs name was not entered in the M.L.R. of the deceased. Nevertheless, the Investigator saw through this and dropped Chainchal Singh as the first informant. The appellant had tried to build up an argument that Pargat Singh could have reached from Nabha in the given time and could have been present at the hospital by 11.00 P.M. when the police arrived. Nevertheless, the Investigator saw through this and dropped Chainchal Singh as the first informant. The appellant had tried to build up an argument that Pargat Singh could have reached from Nabha in the given time and could have been present at the hospital by 11.00 P.M. when the police arrived. Support for this argument was sought from the fact that Jaswinder Kaurs mother and uncle Gurdeep Singh had also reached Civil Hospital Dhuri by 11.00 P.M. and Pargat Singh may have come with these people and on arrival he would still be in time to sign the statement on the basis of which the F.I.R. was concluded. The other aspect of the case that was argued was the absence of blood on the clothes of Pargat Singh and Jaswinder Kaur which may have oozed from the injuries of the deceased. This fact could have some significance if Chainchal Singh also had some blood stains on his clothes because he as the father must have been in the forefront of helping the deceased. Since none of the people who helped in carrying Narain Singh to hospital had any blood on their clothes, nothing much turns on the fact that there was no blood on the clothes of Pargat Singh and Jaswinder Kaur. The prosecution had successfully established the presence of both these witnesses at the time of the occurrence. There is no worthwhile evidence in this case to show that both were absent and had been set up as false witnesses later on. Therefore, the finding of the learned Trial Court that these witnesses were absent was clearly erroneous and deserves to be set aside. 20. The appellant has put forth a counter version with regard to the manner in which the occurrence had taken place. In the statement under Section 313, Cr.P.C. the appellant pleaded that he had hit the deceased with a Kulhari when the deceased was forcibly taking the appellants wife towards the kitchen. In his defence version the appellant admits that the occurrence took place in the house at about 8 PM and most importantly that he hit his brother with a Kulhari. To this extent the defence and the prosecution cases are not at variance at all. The difference between the two versions is only with regard to what exactly provoked the appellant to hit his brother with a Kulhari. To this extent the defence and the prosecution cases are not at variance at all. The difference between the two versions is only with regard to what exactly provoked the appellant to hit his brother with a Kulhari. The prosecution case being that the deceased switched off the light the appellant switched on again and then attacked him. Such a trivial incident by itself may not have been the sole genesis of the occurrence but when viewed in the light of the preceding events, it acquires significance. 21. The deceased and the appellant were real brothers. There had been an unequal division of property which was resented by the deceased. Therefore, it is possible that tension was already in the air. Moreover, the defence version was not disclosed at an early stage and appears to be an after-thought which cannot be accepted even though it was supported by two witnesses who appeared for the defence. Nevertheless, the facts do not seem to establish that the appellant had acted on pre-meditation or after careful planning. It is more likely that he acted on the spur of the moment when an argument flared up over the switching off of the light by the deceased to which the appellant had objected. If the appellant had intended to murder his brother he would have chosen a time when his brothers wife and father-in-law were not present in the house. He may have chosen a different place and would not have surrendered so easily. He may even have employed hired assassins for the job. Therefore, in the absence of pre-meditation it can safely be held that the case was one of a sudden flare up between the brothers and was squarely covered by exception 4 to Section 300, because it was a case of a fight in the heat of anger upon a sudden quarrel and the appellant had not taken undue advantage or acted in a cruel or unusual manner. The case was not where the appellant had acted on grave or sudden provocation. The appellant is accordingly found guilty of culpable homicide not amounting to murder. He had hit the deceased with an axe with the intention of causing death. His conviction must be altered from one under Section 304 (Part II) to under Section 304 (Part I). 22. The occurrence had taken place nearly eleven years ago. The appellant is accordingly found guilty of culpable homicide not amounting to murder. He had hit the deceased with an axe with the intention of causing death. His conviction must be altered from one under Section 304 (Part II) to under Section 304 (Part I). 22. The occurrence had taken place nearly eleven years ago. In the interim period the appellants father Chainchal Singh has rehabilitated his daughter- in-law Jaswinder Kaur and his grandson from Narain Singh by building them a house. The relations between the families of the appellant and the deceased were now cordial though Jaswinder Kaur was still not on speaking terms with the appellant, who has been on bail during this period. Moreover, the appellant has not done any thing to cause annoyance or give rise to tension in the family of the deceased. The appellant is awarded sentence of rigorous imprisonment for 5 years for the offence under Section 304 (Part I) I.P.C. 23. The sentence awarded by the trial court was also five years but only Rs. 3,000/- as fine to be paid to the widow Jaswinder Kaur. It is felt that the award of Rs. 3,000/- is a pittance when a woman has lost her husband even though it was a case of injuries inflicted on account of a sudden fight. Principles of Sections 357 of the Code of Criminal Procedure were not considered by the trial Court. Monetary compensation should be awarded in order to adequately compensate the widow and the son for the criminal act of the accused. In the present case it would be appropriate that an award of Rs. 2.50 lacs as fine be made so that, the fine if recovered is paid to the widow and the son of the deceased as compensation under Section 357 of the Code of Criminal Procedure. 24. Consequently the appellants appeal must fail and the State appeal against the appellants conviction for offence under Section 304 (Part-II) must succeed. The appellants conviction is hereby converted from offence under Section 304 (Part-II) to one under Section 304 (Part I). Sentence of imprisonment of 5 years rigorous imprisonment is resultantly awarded to Lakhwant Singh. Additionally, the appellant is directed to pay Rs. 2.50 lacs as fine and in default of payment thereof he shall undergo a further rigorous imprisonment of 2 years. Sentence of imprisonment of 5 years rigorous imprisonment is resultantly awarded to Lakhwant Singh. Additionally, the appellant is directed to pay Rs. 2.50 lacs as fine and in default of payment thereof he shall undergo a further rigorous imprisonment of 2 years. Fine, if recovered, shall be paid to Jaswinder Kaur (widow) and son of the deceased in equal shares. The appellant shall be taken into custody forthwith to undergo the remaining sentence. The two appeals and the revision are disposed of in the above terms.