JUDGMENT 1. - In this criminal appeal, the accused appellant Gautam S/o Kalu is challenging the judgment dated 30.08.2003 passed by the Additional Sessions Judge cum Special Judge, SC/ST Cases, Pratapgarh in Sessions Case No. 64/1998, whereby the accused appellant was convicted for committing offence under Section 302 IPC and awarded the sentence of Life Imprisonment with fine of Rs. 5000/- and in default of payment of fine to further undergo six months simple imprisonment. 2. As per the facts of the case, on 27.06.1998, SHO Suhagpura received a report by complainant Gopal, in which it was stated that at about 6 a.m. when he was at his house alongwith his younger brother Bhaira. His brother Bhaira went to the nearby handpump, where accused Gautam S/o Kalu living adjacent to the handpump called him and thereafter accused Gautam and Bheriya went together to Gautam's house. After some time the complainant heard the noise of his brother. At that time he alongwith Mangalia, Mohan and Hindura reached to the house of Gautam and saw that Gautam had tied his brother Bheriya to a wooden pillar in his courtyard using a nylon rope and was beating him with lathi. When they saw the incident, they intervened, on which Gautam ran away from the place of occurrence. Due to the beating, Bheriya became unconscious and they took him to the hospital where he died, therefore, they took Bheriya's body to Gautam's house. 3. Upon receiving the aforesaid information, investigation was conducted after registering the FIR against the accused appellant at the Police Station Suhagpura. After investigation, challan was filed against the accused appellant in the court of Civil Judge (Junior Division) and Judicial Magistrate, Pratapgarh, from where the case was committed to the court of Sessions Judge, Pratapgarh for trial. The District and Sessions Judge, Pratapgarh transferred the case to the court of Additional Sessions Judge cum Special Judge, SC/ST Cases, Pratapgarh. After committal, charges were framed against the accused appellant and in trial statements of 18 prosecution witnesses were recorded and 15 documents were exhibited. Thereafter further statement of the accused was recorded under Section 313 CrPC so also the accused appellant led evidence in defence while producing DW1 Jamna before the court. After committal, charges were framed against the accused appellant and in trial statements of 18 prosecution witnesses were recorded and 15 documents were exhibited. Thereafter further statement of the accused was recorded under Section 313 CrPC so also the accused appellant led evidence in defence while producing DW1 Jamna before the court. Learned trial court after hearing both the parties convicted the accused appellant for committing offence under Section 302 IPC and imposed the sentenced of life imprisonment alongwith fine of Rs. 5000/- and in default of payment of fine, to further undergo six months' simple imprisonment vide judgment dated 30.08.2003. 4. Learned counsel for the appellant while challenging the validity of the said judgment vehemently argued that the prosecution has concocted a false story for making allegation against the accused appellant for committing the offence under Section 302 IPC. In fact, no offence under Section 302 IPC has been committed by the accused appellant. While inviting attention of this court towards the statement of the accused appellant recorded under Section 313 CrPC, it is submitted that the accused appellant is not challenging the incident, but gave reason for the incident in the statement recorded under Section 313 CrPC. In his defence, it is stated by the accused appellant that the deceased Bheriya had entered in his house with ill intention to commit rape with his wife. Admittedly the incident took place in the house of the accused appellant, therefore, this fact alone clearly reveals that the deceased entered in the house of the appellant with bad intention. As per the learned counsel for the appellant, there was no previous enmity between the accused appellant and the deceased. The incident took place all of a sudden because the deceased entered in the house of the accused appellant for the purpose of committing the offence of rape and to outrage the modesty of his wife, therefore, it is obvious that a prudent man cannot tolerate such type of conduct of any person in his house, for this reason, the deceased was assaulted by the accused appellant. The story which is narrated by the prosecution witnesses, namely, P.W.2 Gopal, P.W.3 Mohan, P.W.4 Mangalia, P.W.5 Hindura is totally a concocted one because none of the independent witness has corroborated their version and the father of the deceased P.W.6 Rukma in his statement corroborated the statement of the accused appellant recorded under Section 313 CrPC and in the cross-examination, P.W.6 Rukma has specifically stated that when he reached at the place of occurrence, he saw that there were no cloths on the body of the deceased Bheriya and his body was lying upon the cot in the house of the accused appellant, meaning thereby the fact of not wearing any cloths by the deceased Bheriya is found to be correct and It is obvious that the accused appellant has rightly disclosed the correct incident in the statement recorded under Section 313 CrPC. Learned counsel for the appellant has vehemently argued that the accused appellant is not disputing the incident, but gave his explanation for the occurrence which took place, therefore, the learned trial court has committed an error while convicting the accused appellant for the offence under Section 302 IPC and even if the prosecution story is accepted, then on the basis of the material evidence on record, it is obvious that the prosecution has not proved its case that the accused appellant has committed offence under Section 302 IPC. Learned counsel for the appellant vehemently argued that even if the evidence led by the prosecution is considered, then also no offence under Section 304 Part I IPC is made out because the occurrence took place all of a sudden and the prosecution has failed to prove that there was any intention or motive or preparation before occurrence took place, in this view of the matter, the learned trial court has committed a grave error while convicting the accused appellant for the offence under Section 302 IPC because as per the evidence, the case does not travel beyond Section 304 Part I IPC instead of Section 302 IPC. While attacking upon the evidence of the prosecution witnesses P.W.2 Gopal, P.W.3 Mohan, P.W.4 Mangalia and P.W.5 Hindura, it is submitted that upon perusal of the statement of the aforesaid witnesses it reveals that these so-called eye-witnesses reached upon the place of occurrence after the incident, therefore, they cannot be termed as eye-witnesses. While attacking upon the evidence of the prosecution witnesses P.W.2 Gopal, P.W.3 Mohan, P.W.4 Mangalia and P.W.5 Hindura, it is submitted that upon perusal of the statement of the aforesaid witnesses it reveals that these so-called eye-witnesses reached upon the place of occurrence after the incident, therefore, they cannot be termed as eye-witnesses. P.W.6 Rukma, father of the deceased, states that he was informed by his wife P.W.11 Moti, on which he collected the villagers and reached the house of Gautam. This witness does not mention the presence of P.W.2 to P.W.5 at the place of occurrence, but admitted the presence of Nathu and P.W.7 Rajin. He further admitted in the statement that the deceased Bheriya was wearing only undergarments when he saw him. Likewise, P.W.11 Moti and P.W.15 Kuiya stated before the court that the deceased was wearing only undergarments and P.W.16 Kalu stated a new story that Mangudi, the daughter of the accused, raised the shout that the accused was assaulting her mother and the deceased inside the house. In this view of the matter, it is vehemently argued by the learned counsel for the appellant that the prosecution has suppressed the true facts regarding the genesis of the occurrence and in view of the admissions of P.W.6 to 15 regarding the absence of cloths on the body of the deceased and the fact that the incident took place inside the house of the appellant, it emerges that the deceased had entered the house of the appellant with ill intention and due to this reason the occurrence took place, therefore, even if the prosecution version is taken into account, then also the case cannot travel beyond the offence under Section 304 Part I and since the appellant is behind the bars for last more than eight and half years, therefore, it is prayed that the sentence awarded to the accused appellant is required to be altered from Section 302 IPC to Section 304 Part I IPC and he is entitled to be released upon the sentence already undergone by him. 5. Per contra, learned Public Prosecutor has vehemently opposed the arguments advanced by the learned counsel for the appellant and submitted that the finding arrived at by the trial court with regard to committing of offence by the accused appellant under Section 302 IPC does not require any interference. 5. Per contra, learned Public Prosecutor has vehemently opposed the arguments advanced by the learned counsel for the appellant and submitted that the finding arrived at by the trial court with regard to committing of offence by the accused appellant under Section 302 IPC does not require any interference. Admittedly, the deceased Bheriya was assaulted by lathi and due to severe beating, he became unconscious and later on died due to injuries caused to him by the accused appellant, therefore, the prosecution has proved its case beyond any reasonable doubt by producing eye-witnesses P.W.2 Gopal, P.W.3 Mohan, P.W.4 Mangalia, P.W.5 Hindura who gave their statements on oath before the court that when they reached upon the place of occurrence, they saw that the accused appellant Gautam had tied Bheriya to a wooden pillar in his courtyard and was beating him with lathi and upon their intervention, he ran away from the place of occurrence, therefore, the conviction of the accused which is based upon perfect appreciation of evidence does not require interference; hence, this appeal is required to be dismissed. 6. We have considered the rival submissions and the entire record of the case. Admittedly, the accused appellant is not disputing the incident and as per his further statement recorded under Section 313 CrPC, he is not disputing that he has beaten the deceased Bheriya, but he has assigned reason that Bheriya entered in his house and tried to outrage the modesty of his wife and due to this reason, when the accused appellant saw Bheriya in objectionable condition, then he assaulted him by lathi. The relevant portion of the statement of the accused Page 7 appellant recorded under Section 313 CrPC reads as under:- " esjs nks vkSjrs gSA esjh cM+h vkSjr teuk gS nksuksa vkSjrksa ds vyx&vyx edku gS eSa ?kVuk ds fnu NksVh vkSjr ds edku ij lks jgk FkkA e`rd esjh ;k esjh vkSjr tgka lks jgh Fkh mlds edku esa ?kql x;k mlds fpYykus ij eSa ogka x;k og cykRdkj djus dh dksf'k'k dj jgk Fkk eSaus mls ekjihV dj Hkxk;kA va/ksjs esa og ckgj fudyrs gq, edku ds FkEcs ls Vdjk;k o Vdjkdj uhps x;k o Hkkx x;kA " Upon appreciation of the evidence, a very important fact emerges that all the prosecution witnesses including P.W.6 Rukma, father of the deceased, stated before the court that the body of Bheriya was lying upon a cot in the house of the accused appellant Gautam. The eye-witnesses are also giving their version that the occurrence took place in the courtyard of the accused appellant. Other prosecution witnesses P.W.6 to P.W.15 stated before the court that when they saw the body of the deceased lying upon the cot in the courtyard of the accused, he was not wearing cloths, meaning thereby the story which is narrated by the accused appellant in his further statement recorded under Section 313 CrPC appears to be correct. As per the prosecution evidence, no motive has been assigned by any of the eye-witness or other witnesses nor it is stated by any of the prosecution witnesses that there was enmity between the accused appellant and the deceased. There are two sets of evidence on record. One is eye-witnesses P.W. 2 Gopal, P.W.3 Mohan, P.W.4 Mangalia and P.W.5 Hindura and according to them, upon hearing the noise of the deceased Bhera, they went to the house of accused appellant Gautam and saw that Gautam had tied his brother Bheriya to a wooden pillar in his courtyard using a nylon rope and was beating him with lathi and upon intervention he ran away from the place of occurrence. For accepting the testimony of these witnesses, no other evidence has been produced by the prosecution, whereas P.W.6 Rukma, father of the deceased, has stated before the court that he was informed by his wife P.W.11 Moti with regard to the incident, upon which he collected the villagers and reached the house of Gautam, but he has not mentioned the presence of P.W.2 to 5, meaning thereby that the story narrated by the prosecution witnesses No. 2 to 5 is not supported by any other witness and upon perusal of the statement of P.W.6 to P.W.8 and P.W.15, it comes out that the facts narrated by the accused in his statement recorded under Section 313 CrPC are more trustworthy than the testimony of P.W.2 to P.W.5. The accused appellant is not disputing the occurrence, but stated that he has assaulted the deceased because he entered in his house where his wife was sleeping and the deceased was trying to commit rape with his wife. In our opinion, it is obvious that if any person is trying to outrage the modesty of wife of any person, then certainly the said person will make efforts for protecting his wife. In this case, as per the testimony of P.W.6 to P.W.15, it emerges that the deceased Bheriya was not wearing cloths except undergarments and they saw with their eyes that his body was lying in the house of the accused appellant, then it can very well be said how the occurrence took place in the house of accused appellant Gautam and how he was not wearing cloths. Obviously these facts supports the version which is given by the accused appellant in his statement recorded under section 313 CrPC, therefore, upon the assessment and re-appreciation of the evidence, we find that there is force in the arguments of the learned counsel for the accused appellant that this case does not travel beyond Section 304 Part I IPC. The learned counsel for the appellant does not dispute the occurrence and the prosecution witnesses P.W.6 to P.W.15 are also not disputing the place of occurrence and the fact that when they saw the deceased, he was not wearing the cloths except undergarments. According to learned counsel for the appellant, homicidal death of Bheriya is proved. The learned counsel for the appellant does not dispute the occurrence and the prosecution witnesses P.W.6 to P.W.15 are also not disputing the place of occurrence and the fact that when they saw the deceased, he was not wearing the cloths except undergarments. According to learned counsel for the appellant, homicidal death of Bheriya is proved. Further it is submitted that upon appreciation of the evidence, the conviction recorded against him for offence under Section 302 IPC is required to be quashed because it is not a case of murder punishable under Section 302 IPC, but a case under Section 304 Part I IPC because the accused appellant has inflicted vital injury which caused death without any intention to kill him, that too in sudden provocation upon the fact that the deceased entered in his house and tried to commit offence of rape upon his wife, therefore, while disbelieving the testimony of P.W.2 to P.W.5 and accepting the arguments of the learned counsel for the appellant and further statement of the accused appellant under Section 313 CrPC, which is corroborated by the independent witnesses, we are of the opinion that it is a fit case in which the accused appellant can be held guilty for offence under Section 304 Part I IPC and not under Section 302 IPC. The above discussion is well supported by the judgments rendered by the Hon'ble Apex Court. 7. In the case of Lachman Singh v. State of Haryana (2006) 10 SCC 524 , the Supreme Court has held that if occurrence takes place in course of sudden quarrel, conviction of appellant is required to be altered from Section 302 to 304 Part I IPC. 8. In the case of Harendra Nath Borah v. State of Assam 2007 AIR SCW 4631 , Supreme Court has clearly set out the distinction between 'murder' and culpable homicide not amounting to murder. In the said case, deceased truck Driver was assaulted by accused police personnel and thereafter left on the road after he became senseless. In that case, the Supreme Court has altered conviction recorded under Section 302 to 304 Part I Indian Penal Code. 9. In the said case, deceased truck Driver was assaulted by accused police personnel and thereafter left on the road after he became senseless. In that case, the Supreme Court has altered conviction recorded under Section 302 to 304 Part I Indian Penal Code. 9. Applying the principle laid down by the Hon'ble Apex Court in the above referred judgments to the facts of the present case and considering the provisions contained in 4th Exception of Section 300 IPC, it appears that there is evidence to the effect that the occurrence took place due to illegal entry of the deceased in the house of the accused appellant for the purpose of committing rape with his wife and due to that reason, the accused appellant inflicted injuries by lathi to the deceased Bheriya suddenly, therefore, we are unable to agree with the finding of the trial court with regard to guilt of the accused appellant under Section 302 IPC, but at the most, he can be held liable for committing offence under Section 304 Part I IPC because he has inflicted injuries by lathi without any intention, which resulted into the death of the deceased. 10. In this view of the matter, the appeal filed by the accused appellant Gautam is partly allowed and conviction and sentence recorded against him under Section 302 IPC is altered to Section 304 Part I IPC and hereby sentenced to the period already undergone by him in imprisonment which is more than eight and half years, but he shall make the payment of fine as awarded by the trial court and in default of payment of fine, he shall suffer six months' simple imprisonment. The accused appellant Gautam is in jail. He shall be set at liberty forthwith on depositing the amount of fine, if he is not required in any other case.Appeal Partly allowed. *******