JUDGMENT 1. - This criminal appeal u/s. 374 Cr.P.C. arises out of the judgment and order dated 23.9.1999 passed by the Additional Sessions Judge No. 4, Kota, whereby the learned Additional Sessions Judge held the accused-appellant guilty of having committed murder of Yogendra and accordingly convicted him for offence u/s. 302 IPC and sentenced him to life imprisonment with a fine of Rs. 1,000/-, in default thereof, to further undergo 2 months' rigorous imprisonment. 2. As per the prosecution case, on 12.9.1996 at 2.30 p.m., PW-2 Chotu Lal lodged a written report, Ex.D/2 at Police Station Bheemganj Mandi, District Kota, alleging therein that on 12.9.1996 at about 12.00-1.00 p.m. his son Yogendra was consuming Kachori at the shop of Mohan Kachori-wala. Accused- Diwas brother of Vikash collected `RAPT' of Hajari Chamar and pierced it in the stomach and leg of his son, as a result thereof, his son died in the hospital. Lastly, the complainant alleged that the incident was witnessed by PW-1 Ramgopal. 3. On the basis of above written report, police registered a criminal case vide FIR, Ex.P/14 for offence u/s. 302 IPC and proceeded with the investigation. 4. In the course of investigation, the police prepared inquest report, Ex.P/1 and the site plan Ex.P/3. The police seized the blood stained clothes of the deceased and a blood stained piece of stone, upon which the deceased fell down after sustaining injuries vide seizure memos Ex.P/2 and P/4, respectively. 5. PW-1 1 Dr. J.S. Visnar examined the injured for his injuries on 12.9.1996 at 1.30 p.m. and prepared Injury Report, Ex.P/9 and found injuries on stomach and leg caused by sharp weapon. 6. PW-8 Dr. Rakesh Sharma, Medical Jurist conducted autopsy on the dead body and prepared the post-mortem report Ex.P/6. As per the post-mortem report, the doctor found following injuries : 1. Stab wound 1 3/4" x 1 1/2" x CD on the right flank of abdomen, upper part vertically and 2. Incised wound 4" x 1/4" x ⅛ on the medial aspect of right knee extending to right thigh oblique. 7. In the opinion of doctor, the cause of death was shock as a result of injury to mesentary. 8. The police arrested the accused-appellant vide memo Ex.P/11. The accused furnished information (Ex.P/12) u/s. 27 of the Evidence Act as regards recovery of RAPT. 7. In the opinion of doctor, the cause of death was shock as a result of injury to mesentary. 8. The police arrested the accused-appellant vide memo Ex.P/11. The accused furnished information (Ex.P/12) u/s. 27 of the Evidence Act as regards recovery of RAPT. Pursuant to this information, the police recovered RAPI vide memo Ex.P/7 at the instance of accused, which was kept concealed behind an old godown. The FSL report, Ex.P/13 indicates the presence of AB group blood on the pent-and shirt of the deceased, the stone recovered from the place of incident and the RAPI. 9. Having completed entire formalities, the police submitted a charge- sheet against the accused-appellant in the Court of Additional Chief Judicial Magistrate No. 2, Kota. The learned Magistrate having found the offence exclusively triable by the Court of Sessions, committed the case to the learned of Sessions. 10. On the basis of evidence and material collected during investigation and placed before it and after hearing arguments of counsel for the parties, the learned trial Court framed charge against the accused-appellant u/s. 302 IPC. The accused denied the charge and claimed to be tried. 11. The prosecution, in order to prove its case, examined as many as 17 witnesses and got exhibited some document. After the prosecution evidence was over, the accused was examined u/s. 313 Cr.P.C. However, the accused did not examine any witness in his defence. 12. At the conclusion of trial, the learned Additional Sessions Judge found the charge duly established beyond reasonable doubt against the appellant and accordingly convicted and sentenced him in the manner stated hereinabove. 13. Feeling aggrieved by the conviction, the accused-appellant has filed this present appeal. 14. We have heard learned counsel for the accused-appellant and the learned Public Prosecutor and carefully gone through the impugned judgment and the evidence on record. 15. In assailing the conviction, Mr. Gupta, learned counsel appearing for the accused-appellant vehemently contended that it is a case of no evidence. Referring to the written report, Ex.D/2, learned counsel submitted that the words "KE YAHANRAM GOPAL LODHA NE DE-HI HEI" marked G to H have been added subsequently solely with a view to implicate the accused-appellant. As such, according to the learned counsel, the entire prosecution case is false and fabricated. 16. We have given our anxious consideration to the above argument. As such, according to the learned counsel, the entire prosecution case is false and fabricated. 16. We have given our anxious consideration to the above argument. PW-2 Chotu Lal, father of the deceased is the author of the first information report. Having gone through the statement of Chotu Lal it appears to us that no question as to the adding of the name of PW-1 Ram Gopal at a later stage in the FIR as an eye-witness of the incident was put to this witness. PW-13 Om Prakash, at the relevant time was posted as Sub-Inspector at Police Station, Bheemganj Mandi. In cross-examination, this witness has stated that as per his information no word was either added or deleted from the written report, Ex.D/2 after it was submitted at the Police Station. He made it clear in categorical terms that it was wrong to say that the portion marked G to H in the report Ex.D/2 was added. PW-2 Chotu Lal in his cross- examination has deposed that PW-1 Ram Gopal was present with him at the Police Station at the time of lodging the report Ex.D/2. Even from the statement of PW-1 Ramgopal it appears that he was present along with Chotu Lal at the time of lodging the report. Ramgopal was cross-examined at length, but there is nothing to show that any question with regard to there being any interpolation having been made subsequently in the report Ex.D/2 was put to the witness. In this view of the matter, the argument of the learned counsel that the words marked G to H in the report Ex.D/2 were added subsequently is worthy of rejection and is accordingly rejected. 17. It is next contended that the learned trial Court has committed grave error in ignoring this important aspect of the case that the FIR is anti-timed. Learned counsel urged that the incident alleged to have taken place at between 12.00 noon and 1.00 p.m. The deceased died at 2.20 p.m. and, therefore, it cannot at all be believed that FIR was lodged at 2.30 p.m. i.e. just within 10 minutes of the death of deceased. 18. With a view to consider the bove argument, we have scanned the evidence of PW-2 Chotu Lal. 18. With a view to consider the bove argument, we have scanned the evidence of PW-2 Chotu Lal. In cross-examination, the witness has deposed that he reached the hospital at about 1.30 p.m. and remained present in the hospital till the death of his son Yogendra. He reported the matter to the police at Police Station Bheemganj Mandi. He stated that he and Gopal both went to the Police Station in a Police Jeep. The police personnels who had come to the hospital belonged to Police Station Bheemganj Mandi and he alongwith Gopal went to the Police Station alongwith those police personnel. He specifically denied to have visited the Police Station to lodge the report after the inquest report Ex.P/1 was prepared. That apart, PW-15 Roop Singh, ASI has made it clear that at 2.45 p.m., Chotu Lal PW-1 was not present in the hospital and he saw him in the hospital at 3.15 p.m. The distance between the Police Station, the place of incident and the hospital is hardly 2-3 kms. and one can easily cover the distance from hospital to Police Station through vehicle within 5-10 minutes. From the evidence on record it appears that deceased died in the hospital at about 2.20 p.m. and at that time PW-2 Chotu Lal, PW-1 Ram Gopal and the police personnel were very much present there. Immediately after the death of deceased the informant along with Ram Gopal and police personnels left the hospital in a police jeep and reached the hospital within 5-10 minutes and soon after reaching the hospital PW-2 Chotu Lal lodged the written report, Ex.D/2. In these circumstances it cannot be said that the report Ex.D/2 was anti-timed. We see no reason to doubt the lodging of report at 2.30 p.m. 12.9.1996. 19. It is next contended by the learned counsel for the appellant that the learned trial Court has committed serious error in relying upon the testimony of PW-1 Ramgopal, who happens to be the friend of deceased-Yogendra. His conduct is unnatural and that he has made improvements on various aspects of the matter and his statement also does not find support from the statements of PW-2 Chotu Lal, PW-4 Roop Kumar and PW-6 Mohan Lal Vyas. According to the learned counsel, PW-1 Ramgopal was not present at the place and actual time of incident. He is a chance witness. According to the learned counsel, PW-1 Ramgopal was not present at the place and actual time of incident. He is a chance witness. Had he been present at the spot, he would have made all sincere efforts including removing Yogendra to the hospital. He has not stated a single word as to what he did after the accused alleged to have inflicted RAPI blow on the person of deceased. In this back ground learned counsel argued that it would not be safe to rely on the testimony of such an untrustworthy witness who happens to be the solitary witness of the incident. 20. Since PW-1 Ramgopal is the solitary witness of the incident, therefore, his evidence has to be scrutinised with great care and caution. According to him, on 12.9.1996 at 12.00 noon, he was standing near Hanuman temple, Kherli Phatak and deceased-Yogendra was eating Kachori. Some altercation took place between the accused and the deceased. Accused-Yogendra lifted RAPI of a Chamar and struck two blows, one on the stomach and another at the knee of deceased. He crossed the road and came to the place of incident. He then tried to intervene, but, before that, accused had already struck RAPT blows. The accused ran away towards railway station. In cross-examination, the witness stated that police prepared the inquest report at Kherli Phatak. He admitted that he was not aware as to on what matter, the quarrel took place between the deceased and the accused. According to him, the police had recorded his statement on the day of incident. He stated the distance of 5 steps in between the stalls of Mohan Paan-wala and Mohan Kumar Kachori-wala. The Mochi (whose RAPI was lifted by the appellant and was struck on the person of deceased) used to sit at the centre of these two stalls. The witness further stated that he left the hospital to collect the bottle of blood and when he was coming back he came to know about the death of Yogendra. The police took Chotu Lal, PW-2 from Hospital to the Police Station and he had also accompanied them. He then stated that Chotu Lal submitted report at the Police Station and thereafter they left for hospital. According to him, the police prepared the inquest report in the post-mortem room of the hospital and he was present there. The police took Chotu Lal, PW-2 from Hospital to the Police Station and he had also accompanied them. He then stated that Chotu Lal submitted report at the Police Station and thereafter they left for hospital. According to him, the police prepared the inquest report in the post-mortem room of the hospital and he was present there. Lastly, the witness stated that the report Ex.D/2 was submitted to the police by PW-2 Chotu Lal. 21. PW-1 Ramgopal was cross-examined at length, but nothing could be elicited so as to infer that his testimony is unworthy of credence and deserves to be discarded. He has categorically described as to how the incident occurred. He stated that at 12.00 noon on the day of incident, he was standing near Hanuman temple, Kherli Phatak and deceased-Yogendra was eating Kachori. Some altercation took place between the accused and the deceased. Accused- Yogendra lifted RAPI of a Chamar (Mochi) sitting nearby and struck two blows, one on the stomach and another at the knee of deceased. He crossed the road and came to the place of incident and tried to intervene, but before that, the accused had already struck RAPI blows. Thereafter the accused ran away towards railway station. To our mind, PW-1 Ramgopal has stated truth what he had seen. He has stated about lifting of RAPI of the Chamar and striking two blows by RAPI, one at the stomach and another at the knee of deceased. This statement stands in corroboration with the medical evidence. The doctors who examined the injured and conducted autopsy have categorically stated about two injuries found on the person of deceased, one on the stomach and another on knee. The injury No. 1 on the stomach proved fatal, causing death of the deceased. 22. In this view of the matter, we hold PW-1 Ramgopal as a witness worthy of credence and wholly reliable. The learned trial Judge has correctly placed reliance on his testimony. 23. As regards the discrepancy about the place of preparing the inquest report, Ex.P/1, suffice it to say that PW-1 Ramgopal has made it specifically clear in his cross-examination that inquest report was prepared at the hospital. 24. Now we come to the last argument as regards recovery of weapon of offence. 23. As regards the discrepancy about the place of preparing the inquest report, Ex.P/1, suffice it to say that PW-1 Ramgopal has made it specifically clear in his cross-examination that inquest report was prepared at the hospital. 24. Now we come to the last argument as regards recovery of weapon of offence. As per the prosecution version, the accused furnished evidence u/s. 27 of the Evidence Act and he got recovered RAPI which was kept concealed behind a godown. A glance at the recovery memo shows that the RAPI was cleaned. However, the FSL report, Ex.P/13 speaks about the presence of AB group blood on the RAPI. Since the RAPlrecovered by the police was apparently cleaned, therefore the FSL report showing presence of blood is of no use. That apart, PW-4 Roop Kumar, who is none other than the real brother of deceased has categorically stated in his cross-examination that he had seen the accused running after striking his brother. He further made it clear that accused after throwing the RAPI had run away. According to him, he did not hand over the RAPI to the police, but the police at its own had seized the same. It is thus abundantly clear that recovery of RAPI at the instance and information of appellant from his possession becomes highly doubtful and is of no help to the prosecution. 25. Thus except the recovery of weapon of offence having not been proved, the prosecution has been able to establish that it was accused-appellant-Diwas who was responsible for causing the death of deceased. Our inevitable conclusion is that appellant is the assailant. 26. The only question which now remains to be adjudicated upon by us is as to what offence is made out against the appellant in the light of the evidence on record? 27. In the instant case, the factual scenario as presented by the prosecution goes to show that in the course of sudden quarrel, the accused-appellant lifted RAPI and struck the same. Concededly, there is no allegation of the prosecution that before the occurrence, the appellant had premeditated. The deceased was consuming Kachori at the shop of Mohan Kachori-wala and the quarrel appeared to be sudden, on account of heat of passion. Concededly, there is no allegation of the prosecution that before the occurrence, the appellant had premeditated. The deceased was consuming Kachori at the shop of Mohan Kachori-wala and the quarrel appeared to be sudden, on account of heat of passion. As per the evidence of solitary witness the accused lifted RAPI of a Chamar (Mochi) sitting nearby and inflicted two blows, one the stomach and another on the leg of deceased, at the spur of moment. It appears to be probable that there was no sufficient lapse of time between the quarrel and the fight, meaning thereby that the occurrence took place all of a sudden. 28. Keeping in view the fact and circumstances of the case it must be held that appellant is proved to have committed the offence of culpable homicide without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner. In this view of the matter, we are firmly of the view that the case is covered by Exception 4 to Section 300 IPC. The four requirements attached to Exception 4 stand fully satisfied. Firstly it was a case of sudden fight, secondly there was no premeditation, thirdly the act was in a heat of passion and fourthly the accused-appellant had not taken any undue advantage or acted in a cruel manner, inasmuch as he did not repeat the blows. As such, it must be held that appellant had the knowledge that the act done by him is likely to cause death but he had no intention to cause death or to cause such bodily injury as is likely to cause death. 29. The upshot of the above discussion is that we alter the conviction of the appellant from Section 302 IPC to that of Section 304 Part II IPC. As regards sentence, keeping in view the facts and circumstances of the case we deem it appropriate that custodial sentence of more than 7 years would meet the ends of justice. 30. The appeal stands partly allowed to the extent indicated above. The appellant is in jail and he be set free forthwith, if not required in any other case.Appeal partly allowed. *******