JUDGMENT 1. - Accused appellant Ratna @ Ratan lal S/o Amra challenges his conviction for the offence of Section 302 IPC and awarded sentence of Life imprisonment with fine of Rs. 1000/-, in default one year simple imprisonment recorded as per judgment dated 04.04.2003 in Sessions Case No. 55/2002 by the court of Additional District Judge (Fast Track) Dungarpur. 2. According to prosecution, one Shri Punia S/o Kanji on December 21, 2001 at about 9 PM informed P.S. Ganeshpur by lodging a written report Ex.P/9 that on that day 21.12.2001 in the evening at about 6.30 - 7 PM, his elder brother Shankar while going to own house from house of his son Narayan, near handpump uttered "galiyan"- (filthy abusing words) to Ratna that he not attending functions of village (still wants to take and enjoy half land of father) and abusing so, Shankar went to his own house from where uttering and abusing came back and going through courtyard of Hamji came back to house of Punia where Punia also was, who advised Shankar not to do so and go back home, still Shankar uttering so, tried to enter into compound of Lalji and Punia preventing Shankar from doing so sent him back to his house. FIR Ex.P/9 described that Shankar going a little distance towards home came back and entered compound of Lalji where Ratna came having an axe in hand and getting hold of Shankar dragged him to own house (appellant's) where in compound, inflicted blows of axe on back and neck of Shankar who fell down, then again Ratna inflicted a blow near left ear. Shankar bleeding profusely and as Lalji, Smt. Jhamku Hamji, Smt. Shanta, Smt. Manjula, Smt. Ramila reached the spot, Ratna and his wife entered their house and closed the door. Mentioned a little in the FIR is that incident occurred due to old dispute regarding partition of land. On this report, FIR No. 204/01 Ex.P/10 registered for the offences of Section 302 IPC. 3. In course of investigation, in the morning of 22nd December at about 9 AM, SHO inspecting site examined dead body of Shankar which was got photographed, samples of blood stained and plain soil and also blood stained clothes of deceased taken and sealed, preparing memos Ex.P/1 to Ex.P/5. Positives of photographs are Ex.P/23 to Ex.P/29 and negatives Ex.P/29. 3. In course of investigation, in the morning of 22nd December at about 9 AM, SHO inspecting site examined dead body of Shankar which was got photographed, samples of blood stained and plain soil and also blood stained clothes of deceased taken and sealed, preparing memos Ex.P/1 to Ex.P/5. Positives of photographs are Ex.P/23 to Ex.P/29 and negatives Ex.P/29. Postmortem of body performed at 11:15 AM, report of which is Ex.P/8 and body handed over for last rites. 4. Accused arrested on 22nd December at 5 PM and on his disclosure and at his instance from his house, lying near Kothi, an axe of fulcrum 11 & 6cm having blood stains is alleged to have been recovered and related memos are Ex.P/ 11,12,16 & 17. Keeping packets of all above mentioned articles safe in malkhana, same were delivered to FSL and receipt Ex.D/21 obtained. After usual investigation, challan submitted and registered Criminal Case No. 29/03 committed to court of Sessions. 5. Appellant charged for the offence of Section 302 IPC that he on 21.12.2001 at about 6:30 PM with intention of killing Shankar inflicted on his head severe injuries of sharp weapon caused his death, claimed trial. 6. Of the prosecution witnesses, Punia PW/10, Hamji PW/3, PW/4 Jhamku, PW/5 Ramila, PW/6 Lalji, PW/14 Manjula, Shanta PW/17 are as per prosecution eye witnesses and of above witnesses, PW/6, PW/10, PW/14, PW/16 are declared hostile. Narayan PW/15 and Ramesh PW/17, sons of deceased who reached the village in morning of following day, are also declared hostile. PW/20 Malkhana incharge Head constable and PW/6 constable pertains to keeping articles safe and delivering same at laboratory. PW/21 is photographer and PW/7 Dr. Goyal is Medical Officer who conducted postmortem and has proved report Ex.P/8. PW/1 and PW/2 are motbirs of site inspection etc whereas PW/12 and PW/13 both hostile are motbirs of recovery of axe and PW/18 is S.H.O. I.O. 7. When examined under Section 313 Cr.P.C. accused stated that witnesses are telling lie and he falsely implicated because of land dispute. No defence evidence led. 8. From the evidence, it appears that deceased Shankar and witness Punia PW/10 and Hamji PW/3 are brothers, all sons of Kanji. Smt. Jhamku is wife of deceased. Narayan PW/15 and Ramesh PW/16 are sons of deceased and Ramila PW/5 wife of Ramesh PW/16 is daughter in law of deceased. According to Manjula PW/14, deceased was her uncle. 8. From the evidence, it appears that deceased Shankar and witness Punia PW/10 and Hamji PW/3 are brothers, all sons of Kanji. Smt. Jhamku is wife of deceased. Narayan PW/15 and Ramesh PW/16 are sons of deceased and Ramila PW/5 wife of Ramesh PW/16 is daughter in law of deceased. According to Manjula PW/14, deceased was her uncle. Lalji PW/6 is son of Amra PW/13 and PW/17 is wife of Lalji PW/6. It transpires from the evidence that all the eye-witnesses live in very near vicinity to each other in neighbourhood. 9. Learned counsel for the appellant argued that (i) from the FIR and also as per prosecution evidence, it was deceased who continuously abused the appellant (ii) reasons to believe that deceased Shankar was aggressor (iii) recovery not proved and cannot be relied upon (iv) relatively independent witnesses do not support prosecution and those who implicate the appellant are near relatives of deceased (v) investigation not conducted fairly and as alleged and witnesses depose contrary to description in memos. 10. Learned counsel for the appellant also argued that according to testimony of Medical Officer PW/7 who conducted postmortem, death caused due to hemorrhagic shock but has not mentioned as to what type and of what object injury no.2 is. Strenuously argued that if at all appellant is proved to have inflicted injuries, it was neither with intention of causing death nor intention of causing such injury as likely to cause death. Vehemently submitted that as deceased Shankar without reason abused the appellant, the appellant was put to sudden and grave provocation and in such state, if any injuries are inflicted, the act at most be an act within ambit of Section 304 Part II IPC. 11. Learned Public Prosecutor argued that injuries are caused by sharp object, an axe and more than one of such injury/inflicted by appellant. Submitted that two injuries are of big dimensions causing fracture of neck and one on right face and ordinary course of nature, death is most likely. So the accused is rightly held guilty of offence. 12. First taking up nature and intensity of injuries caused, almost all the witnesses have spoken that appellant inflicted blows of axe at the neck and also at ear of deceased Shankar. According to Medical Officer, PW/7, he conducted postmortem on 22.12.2001 at the request of Police Station Ganeshpur. So the accused is rightly held guilty of offence. 12. First taking up nature and intensity of injuries caused, almost all the witnesses have spoken that appellant inflicted blows of axe at the neck and also at ear of deceased Shankar. According to Medical Officer, PW/7, he conducted postmortem on 22.12.2001 at the request of Police Station Ganeshpur. As per testimony of S.H.O. PW/18 Shanti lal though FIR received at about 9 PM on 21.12.2001 and he reached the spot at about 10:15 PM but it was late in the night. So postmortem conducted next day. PW/7 Dr. G.P. Goyal proving the postmortem report Ex.P/8 describes that following were the injuries all of which were antemortem:- 1. Incised wound 9.5cm x cm x 5cm on the back of neck 2. Fracture second cervical vertebra with underlying spinal cord found damage. 3. Incised wound 5cm x 1.75 x bone deep on the left side face. 4. Incised wound 3cm x 1/2cm x 11/2cm deep on right side super clavicular fossa 5. Abrasion 4cm x 1/2cm on left thigh posterior upper region 6. Abrasion 11/2cm 1cm on left side elbow joint 7. Abrasion 3cm x 11/2 on left side elbow joint 8. Lacerated wound 1/2cm x 1/2cm x cm on left lower lip 13. As mentioned in report Ex.P/8, postmortem commenced at 11:15 AM and death occurred within 6 - 24 hours because of "neuro hemorrhagic shock"- caused by Injuries No. 1,2 & 3. On the second cervical vertebra as above was found fracture and just above, almost in that area is incised wound (No.1) of size 9.5cm x cm x 5cm. Looking to the dimensions of Injury No.1 and with fracture of above vertebra, it can be said that these injuries by itself may have been sufficient to cause death. Dimension of injury no.1 itself discloses gravity. On left side of face extending upto ear i.e. 5cm x 1.75 and bone deep is wound caused of sharp object. An incised wound is also on right clevical supra. The doctor has opined that injuries incised wound No.1, 3 & 4 can be caused by sword, farsa or object like glass. Considering injuries, there can be no reluctance for inference that the injuries caused sufficient in the ordinary course of nature to cause death "- even first two injuries were itself sufficient. 14. The doctor has opined that injuries incised wound No.1, 3 & 4 can be caused by sword, farsa or object like glass. Considering injuries, there can be no reluctance for inference that the injuries caused sufficient in the ordinary course of nature to cause death "- even first two injuries were itself sufficient. 14. Though Punia PW/10 is declared hostile but considering his evidence it stands proved that FIR Ex.P/9 was lodged by him at P.S. Punia PW/10 clearly admits that he has lodged report Ex.P/9 and his signatures also on registered FIR Ex.P/9 and memos Ex.P/1 to Ex.P/5. As is mentioned, he is the real brother of accused. Without discussing more, atleast this stands proved that FIR was lodged by this witness. I.O. S.H.O PW/18 testifies that report Ex.P/9 was tendered to him at 9 PM on 21.12.2001 and he registering the FIR Ex.P/9 reached at the spot at 10:15 PM and as late night, substantial investigation commenced next morning. So, it is proved that for the said incident of 6:30 PM, FIR is lodged at about 9 PM. As is mentioned in Ex.P/10, place of incident is at a distance of 10 km from P.S. As FIR is lodged within few hours and and by appropriate person like PW/10, any chances of manipulation diminishes. The informer PW/10 has not disowned it. 15. FIR Ex.P/9 also contains names of (i) Hamji through whose compound first came Shankar (ii) Lalji where Shankar tried to go and prevented by FIR lodger Punia - then Shankar entered Lalji compound and came back (iii) Smt. Jhamku, Shanta, Manjula, Ramila and also Lalji and Punia soon reached at the place of incident, the compound of Ratna. Not only according to site memo Ex.P/1 but also as per evidence of these witnesses, their houses are quite nearby and as above are near kith and kin. Out of above witnesses PW/6, PW/10, PW/14 are declared hostile but looking to their near relation and considering positive evidence of PW/3, PW/4, PW/5 and PW/4, no significance can be attached to non-supporting of prosecution by PW/6, PW/10 and PW/17. Punia PW/10 though has been declared hostile but have in clear terms admitted the happening of such incident at the compound of Ratna. PW/6 has also admitted that body of Shankar was lying at compound of Ratna. 16. Punia PW/10 though has been declared hostile but have in clear terms admitted the happening of such incident at the compound of Ratna. PW/6 has also admitted that body of Shankar was lying at compound of Ratna. 16. As per deposition of PW/10, Shankar coming from home of his elder son on way near hand-pump, Ratna uttered some abuses to Shankar and he counselled Shankar but still Ratna continued to abuse Shankar, so Shankar came back and some exchanges between them continued, then some quarrel followed. In cross-examination states distance between his and Ratna's house to be 300 ft and in between is Lalji's house and that he and named others soon reached there. Statements of this witness PW/10 in during course of investigation Ex.D/4 contains that between Ratna and his brothers is older land dispute and PW/10 on being confronted denied the same. As is described in FIR, this witness PW/10 describes uttering of abuses by Shankar. 17. Hamji PW/3 states that he was at his compound and Ratna was abusing Shankar as Shankar told him (Ratna) of desirability and necessity of attending social ceremonies and functions and then both abused each other then appellant Ratna uttered improper words and got hold of Shankar by hand, dragged him to courtyard and of axe inflicted blows below ear and neck - he PW/3, Punia, Jhamku, Ramila, Manjula arrived soon and tried to stop oozing of blood who died soon. PW/2 mentions that no dispute of land partition was and incident occurred solely because of abuses - in cross-examination states that his own house is at a distance of 25 ft and he arrived on hearing shouts. PW/3 when confronted with his investigational statement Ex.D/1 denied that. Shankar came there abusing Ratna as he is desiring for half land and not attending social function and that old dispute regarding land is between Shankar and his brothers. PW/3 when confronted as above, denying the same could not assign any reason why Ex.1 does not find mention of abuse by Ratna. Considering this aspect, it cannot be accepted that appellant abused deceased. 18. PW/3 when confronted as above, denying the same could not assign any reason why Ex.1 does not find mention of abuse by Ratna. Considering this aspect, it cannot be accepted that appellant abused deceased. 18. Manjula PW/14 deposes that she was out to collect wood in the evening and when returned to house, appellant Ratna abusing Shankar was asked by Shankar not to do so and talk calmly and when Shankar further told him of not attending village functions and necessities, appellant Ratna inflicted blows of Kulhadi on shoulder and ear of Shankar who fell down - sooner came Hamji, Jhamku and Ramila. PW/14 also state that Ratna when dragged Shankar to his compound, she, the witness, tried to intervene was also injured a little by axe and treated by a private doctor. PW/14 confronted of her statement in course of investigation Ex.D/5 denied of any land dispute and also that because of land dispute, the incident occurred - As per testimony of PW/14, Ratna abused Shankar but simultaneously tells that first deceased Shankar told (questioning) as to why Ratna not attending functions. Looking to this position, on the basis of statement of this witness PW/14, it cannot be taken, much less, believed that it was appellant who first abused or continuously abused deceased. 19. As per I.O. Shanti lal PW/18, accused was arrested in evening of 22.12.2001 who disclosed him in the morning of 23.12.2001 that axe lying in his house below the kothi- memo of information Ex.P/17 bears appellant's signature. PW/18 testifies that accused took out axe from Kothi which was seized and sealed, memos of recovery and site plan of that place are Ex.P/11 and 12. Motbirs of this recovery PW/12 & PW/13, though declared hostile and have denied any such recovery but admitted their signatures. Proved by the evidence is that packets of samples of plain and blood stained soil, shirt and banyan of deceased and of axe recovered respectively bearing work A,B,C,D were kept intact in sealed position by PW/12 making entries in Malkhana register and same were delivered at FSL by Constable PW/19 obtaining receipt Ex.P/29. FSL report is on record, and as same is admissible without formal proof under provisions of Cr.P.C, is being marked as Ex.P/29. The report states that all above articles except samples of plain soil contains human blood of group O. It is a strong circumstance against the appellant. FSL report is on record, and as same is admissible without formal proof under provisions of Cr.P.C, is being marked as Ex.P/29. The report states that all above articles except samples of plain soil contains human blood of group O. It is a strong circumstance against the appellant. For the sake of clarity it is mentioned that even if this recovery is not considered still by other evidence, it stands proved that it is only accused who inflicted blows of axe to Shankar. 20. Coming to in what circumstances injuries were inflicted as narrated by Punia PW/10, deceased coming from son's house on way abused Ratna for not attending social necessities and still wanting to take land - uttering so deceased went to his own house then continuing abusing came back to Hamji's compound and continuing so came to back of brother Punia's house where counselled and pursued to go back home by Punia - still Shankar continuing abusing entered Lalji's compound who grabbed and prevented to do so by PW/10 and directed for his own house - going back to house the deceased again came back, entered Lalji's compound and then Ratna came, grabbed and dragged deceased to his own compound. Needless to say that narration in FIR supported by oral evidence discloses strong basis for sudden and grave provocation. According to evidence of eye-witnesses as contradicted by their statements made in course of investigation is established that continuing abusing by deceased and probably some brawl between them but only after repeated continuous abuses by deceased. 21. Making continuous abuses, going towards own house and deceased coming back doing same who prevented by brother (by grabbing) to enter into compound of Lalji then again reverting and entering Lalji's house nearby house of Ratna. Constituted circumstance and elements sufficient enough for sudden and grave provocation so as to deprive one of self control. In the circumstances, the only inference is that act of deceased was such as to cause sudden and grave provocation depriving appellant the power of self control. Thus very clear is that deceased Shankar caused sudden and grave provocation and the provocation was neither sought nor caused by any act by appellant. In such contingencies and for the acts committed in such circumstances express is the provision in Section 300 IPC. Thus very clear is that deceased Shankar caused sudden and grave provocation and the provocation was neither sought nor caused by any act by appellant. In such contingencies and for the acts committed in such circumstances express is the provision in Section 300 IPC. Culpable homicide is not murder if the act committed when deprived of power of self control by grave and sudden provocation (subject to just exceptions). 22. For the acts committed, because of the deprivation of power of self control caused by grave and sudden provocation, excuse is not unlimited one. Necessarily provocation must be rationally sufficient for killing or harm to any person. Here now is to be examined whether provocation was enough or to the extent of excuse for the act. Shankar, deceased by continuous abuses and intrusions as above suddenly caused grave and sudden provocation to appellant deprived him of self control. Deceased was aged about 50 years. Accused kith and kin though not very close and are living nearby - though deceased came in the compound of Lalji which is very near residence of Ratna but was not having any object for assault or otherwise - then appellant dragged deceased to compound of own house. Here while dragging the deceased, the appellant was armed with an axe. In compound, injury inflicted by axe and not from blunt side. On the back of head, substantial blow of axe inflicted and deceased fell down. Certainly deprivation ended the moment deceased fell down. After deceased collapsed, another injury substantial one by axe was inflicted at the face. The injury No. 3 caused to deceased in ground fallen state certainly atleast hastened the effect of earlier injuries and result the death. In such circumstances, the act of appellant comes within Section 304 Part I IPC. 23. Established is that injuries 1st and 3rd inflicted and looking to injury no.1 coupled with injury no.2 though, no intention to cause death existed but after inflicting above injury on neck, then inflicting injury by axe again to Shankar in ground fallen state is caused injury (No.3) at face by axe and this infliction of injury brings the act of accused within ambit of Part I and not Part II of Section 304 IPC. 24. 24. The inference is that the above act of accused causing death falls under Exception I of Section 300 IPC and accused is proved to have committed offence punishable under Section 304 Part IPC. 25. Appellant a villager and agriculturist at the time of incident was 23 years of age and he appears to be in custody since 22.12.2001. Considering relevant facts and circumstances for the offence of Section 304 Part I IPC, sentence of 8 years and fine of Rs. 1000/- shall meet the ends of justice. 26. For the reasons above, the appeal is party accepted. Partially accepting the appeal, setting aside the conviction of accused Ratna @ Ratan Lal S/o Amra for the offence under Section 302 IPC by Additional District and Sessions Judge (Fast Track) Dungarpur in Sessions Case No. 55/2002 - his conviction is altered to that of Section 304 Part I IPC and appellant is sentenced to eight years rigorous imprisonment with fine of Rs. 1000/-, in default of payment, to undergo three months simple imprisonment.Appeal partly allowed. *******