JUDGMENT 1. - This appeal has been preferred by the accused-appellant Bhagwan Singh against his conviction for offence under section.302 Indian Penal Code by judgement of the Additional Sessions Judge (Fast Track), No.4, Jhalawar Camp, Aklera dated 5.9.2003. Upon his conviction, petitioner was sentenced to undergo life imprisonment and pay a fine of Rs. 1,000 and in default of which, he is required to further undergo rigorous imprisonment of one year. The order of sentence is also under challenge. 2. Facts giving rise to this appeal are that one Narsingh Dass Vairagi, resident of Thanavad submitted a written report to SHO, Police Station Aklera at 2.30 PM on 2.11.2002 inter alia alleging that he and his son on the night of the previous day at 7.00 PM had gone to their agriculture field for guarding the harvest. His wife Sita Bai and daughters Nani Bai and Parvati stayed back in the house. When he returned back to his house at 6.00 AM, he found that main gate of the house was open. He saw his wife sleeping under the shed (Agdalya) and daughters on the cot at another place. He milked the cow. His son Rakesh went back to the agriculture field with the bullocks. He asked her daughter Nani Bai to awake her mother to prepare tea. When Nani Bai went to wake up her mother, she found her murdered and cried that somebody had murdered her. The complainant himself checked and found that Sita Bai had received grievous injuries behind her left ear and blood was oozing out of the injuries. One of her ear-ring was not present in the ear, but found lying nearby. She was still wearing the bangles and silver necklace and the ornaments of the fingers of foot. When he raised hue and cry that someone had murdered his wife, neighbours Bheru Lal Kumhar, Ram Bharose, Dhuli Chand, Moti Lal and other residents of the village assembled in her house. The police after investigation filed challan against the accused-appellant for offence under section.450 and 302 of Indian Penal Code and thereafter, charges were also framed against him for the aforesaid offences to which the accused-appellant pleaded not guilty and claimed to be tried. Prosecution in support of its case, examined sixteen witnesses, whereas defence produced two witnesses. The police after investigation filed challan against the accused-appellant for offence under section.450 and 302 of Indian Penal Code and thereafter, charges were also framed against him for the aforesaid offences to which the accused-appellant pleaded not guilty and claimed to be tried. Prosecution in support of its case, examined sixteen witnesses, whereas defence produced two witnesses. The learned trial court after conclusion of the trial, convicted and sentenced the accused-appellant in the manner indicated above. 3. We have heard Shri Rajesh Choudhary, learned counsel for the accused-appellant and Shri J.R. Bijarniya, learned Public Prosecutor for the State. 4. Shri Rajesh Choudhary, learned counsel for the accused-appellant has argued that the appellant has been falsely arrayed as an accused in the present case. In fact, the evidence that has come on record clearly suggests that PW-9 Nani Bai had not been having cordial relations with her mother Sita Bai and they used to quarrel with each other as PW-9 Nani Bai used to insist that she should be sent to her in-laws place, whereas deceased Sita Bai opposed her such request. Learned counsel referred to the statement of PW-1 Rakesh, son of the deceased and younger brother of PW-9 Nani Bai. This witness in his cross examination has clearly stated that in the night of the fateful day, Nani Bai and Sita Bai had quarrelled with each other. Nani Bai even caught hold of the neck of her mother. She used to quarrel with her mother because she wanted to go to her in-laws place, whereas her mother Sita Bai did not allow her to go. Nani Bai also once made attempt to commit suicide. When the police came to their house on the following day, the complainant and family members had handed over Nani Bai to their custody. Nani Bai tried to flee away from their house in the night of the second day, but her elder sister Manbhar did not allow her to go. Nani Bai went straight to her in-laws place from the Police Station and did not participate in the last rites of her mother. Reference in particular was made to that part of the cross examination where this witness has stated that there was no dispute between Bhagwan Singh and her family. Nani Bai did not immediately inform the family members that it was Bhagwan Singh, who had murdered Sita Bai. 5. Reference in particular was made to that part of the cross examination where this witness has stated that there was no dispute between Bhagwan Singh and her family. Nani Bai did not immediately inform the family members that it was Bhagwan Singh, who had murdered Sita Bai. 5. Shri Rajesh Choudhary, learned counsel for the appellant also argued that PW-2 Narsingh Dass also stated that when he asked Nani Bai to wake up her mother, she suddenly told that someone had murdered her. Only Nani Bai can inform as to who had murdered Sita Bai, but this witness has stated that all her ornaments were found intact in the house. Nani Bai told the family members that thieves had murdered Sita Bai, but she did not immediately named Bhagwan Singh as the murderer either to the family members or to the villagers when they assembled after this witness raised hue and cry. In cross examination, this witness has admitted that his wife Sita Bai and daughter Nani Bai used to quarrel for doing the small family works. The police then took Nani Bai with them and kept her in Police Station for two days and then she was allowed to go straight to her in-laws. This witness also stated that he had no doubt that accused-appellant Bhagwan Singh murdered his wife. Learned counsel submitted that Nani Bai in her initial statement given to the police under Section 161 Cr.P.C. on the date of lodgement of FIR on 2.11.2002, did not make any allegation against the accused-appellant. It is only when her second statement was recorded under section.161 Cr.P.C. Ex.D2 on 7.11.2002 after the recovery of the blood stained kulhari and the blood stained pieces of blanket at the instance of her elder sister PW-15 Manbhar Bai that she gave a completely changed version, which version she also mentioned in her statement under section.164 Cr.P.C. She stated that accused-appellant was a Peon in a private school adjacent to their house. He used to stay in school building during night. She had fallen in love with him and he in turn also loved her. In the evening of the previous night, accused-appellant Bhagwan Singh told this witness that he would come to his house during night on that day for making love. She waited for him for 1-2 PM till late night, but he did not come. She had fallen in love with him and he in turn also loved her. In the evening of the previous night, accused-appellant Bhagwan Singh told this witness that he would come to his house during night on that day for making love. She waited for him for 1-2 PM till late night, but he did not come. Suddenly after sometime, there was a knock at the main door. She got up from the cot and opened the door and met accused-appellant Bhagwan Singh. This witness further stated that when they were talking, her mother woke up, who enquired as to who was there. Bhagwan Singh started running towards the Bada. Her mother also followed him and caught hold of him in front of the room where the fodder for the cattle was stored. She slapped him two-three times. Bhagwan Singh being annoyed caught both her hands. When Nani Bai asked Bhagwan Singh to leave her mother, he stated that this old lady was an obstruction in their love affairs and then he got a kulhari lying in the storage room of fodder and inflicted two-three blows near her neck and her mother died. Bhagwan Singh then dragged her dead body to the place where she was originally sleeping and covered the same with a blanket. Bhawan Singh has stated to Nani Bai that whatever had happened has happened and that she should not tell anyone about this incident or else he would kill her also. He threatened that he would also kill her brother and father and other family member, therefore, at no cost, the incident should be divulged to anyone. This witness then lied down on the cot and pretended to sleep. On the following morning, when her father told her to wake up her mother, she pretended as if she is completely unaware about what happened and then informed her father that somebody has murdered her mother. However, subsequently, when her elder sister came in the house and during cleaning of the house, found the pieces of blanket and the kulhari, she could no longer maintain silence and divulged everything to the family members. 6. However, subsequently, when her elder sister came in the house and during cleaning of the house, found the pieces of blanket and the kulhari, she could no longer maintain silence and divulged everything to the family members. 6. It is argued that when Nani Bai appeared as PW-9 in the Court during trial, she made much more improvement over her earlier version even in statement under Section 164 Cr.P.C. Apart from narrating aforesaid story, she also stated that it was she who told the accused-appellant Bhagwan Singh about the kulhari (weapon of the offence), which was lying 4-5 feet away from the place where her mother was murdered. The accused-appellant threatened her that if she informed anybody about the incident, he would murder her also. The accused then concealed the kulhari in the storage room of the fodder. Learned counsel therefore submitted that the witness Nani Bai is the sole witness and on her testimony the conviction of appellant has been recorded by the learned trial court, whereas this witness is not trustworthy and reliable. On the contrary, this witness is more or less in the character of an accomplice. It is contended that this witness had unnatural conduct, in that, she did not disclose the incident to anyone in the family on the following day. It is quite unnatural that a daughter would maintain composer even when her mother has been murdered in her presence. She pretended to sleep during night and on the following day again pretended to be normal when her father came back from the agriculture field. On the contrary, the evidence suggests that she had a quarrel with her mother Sita Bai on the previous evening and even caught hold of her neck. She used to insist upon the mother to send her to her in-laws, which her mother used to object. There is also statement of her brother PW-1 Rakesh that Nani Bai even tried to commit suicide, therefore, also it is quite possible that this witness herself murdered her mother in the fit of anger. The statement of PW-9 Nani Bai, even otherwise, is full of contradictions. It is contended that seizure of the kulhari vide Ex.P5 and the pieces of blankets vide Ex.P4 was not made at the instance of accused-appellant, but at the instance of PW-15 Manbhar Bai, elder sister of PW-9 Nani Bai. The statement of PW-9 Nani Bai, even otherwise, is full of contradictions. It is contended that seizure of the kulhari vide Ex.P5 and the pieces of blankets vide Ex.P4 was not made at the instance of accused-appellant, but at the instance of PW-15 Manbhar Bai, elder sister of PW-9 Nani Bai. There is no FSL report to connect the blood found on those articles were that of the deceased Sita Bai or contained her blood. Learned counsel argued that the prosecution has deliberately withheld Parvati Bai, younger sister of Nani Bai aged 7 years and did not produce her as a witness. She was also sleeping with her on the fateful night. Even if this witness was aged 7 years old, she could still speak the truth as to who actually murdered her mother Sita Bai. Adverse inference should be drawn against the prosecution for not producing this important witness from the Court. Learned counsel further argued that contention of PW-1 Rakesh and PW-2 Narsingh Dass that police had taken Nani Bai in custody and kept her in police station for two days stands falsified from the statement of PW-16 Ghanshyam Sharma, the Investigating Officer, who has denied any such suggestion. On the contrary, DW-1 Rajendra @ Raju and DW-2 Birdhi Lal, the witnesses produced by the defence have clearly stated that on hearing hue and cry of Narsingh Das, they went to his house and heard him crying that Nani Bai had murdered her mother. When they enquired about the reason, he told that Nani Bai wanted to go to her in-laws and her mother Sita Bai was not allowing her to go and due to this dispute, the quarrel arose between them on the previous night. Nani Bai confessed to the crime in presence of those witnesses to the police, which also arrived there soon after. 7. Alternatively, it is submitted by the learned counsel for the appellant that the allegations of PW-9 Nani Bai that two-three blows of kulhari were inflicted by the accused-appellant on the neck of the deceased is not corroborated from medical evidence. In this connection, learned counsel referred to postmortem report Ex.P18 and statement of PW-14 Dr.Mangi Lal, which proved existence of only one injury in the size of 8 cm x 1.5 cm, wide and deep, which is one and half centimeter below left ear. In this connection, learned counsel referred to postmortem report Ex.P18 and statement of PW-14 Dr.Mangi Lal, which proved existence of only one injury in the size of 8 cm x 1.5 cm, wide and deep, which is one and half centimeter below left ear. With the help of this evidence, learned counsel sought to argue that the incident in the present case had taken suddenly at the spur of moment. As per the evidence of Nani Bai, deceased noticed the accused-appellant talking to Nani Bai in the mid night, to which she objected. When the accused-appellant wanted to escape, the deceased ran after him. She caught hold of him and slapped him two-three times. It was in that situation that accused-appellant upon being provoked by the deceased herself, retaliated in the fit of anger and allegedly inflicted a single blow with the help of kulhari, but there is no evidence to prove that appellant in any way repeated the blows. It was a case of single blow and, therefore, the offence would not travel beyond the scope of culpable homicide not amounting to murder because the offence had taken place due to sudden quarrel and without the intention of causing death and such bodily injury which the accused knew was likely to cause death. This is all the more so because evidence does not prove that the accused had gone to the house of the deceased having arms with him. On the contrary, the witness PW-9 Nani Bai admitted that she told the accused about the arm (kulhari) lying 4-5 feet away from them. 8. Learned counsel for the accused-appellant has argued that the present matter would fall in Exception-1 as well as Exception-4 to Section 300 of Indian Penal Code. It falls under Exception-1 because as per the prosecution evidence, it was deceased Sita Bai, who had allegedly chased the accused-appellant, caught hold of him and slapped him two-three times. She thus gave grave and sudden provocation to the appellant, which deprived him of power of self control and in that provocation, he may have caused her death. The matter would fall in Exception-4 as well because the death was committed without any premeditation in a sudden fight and heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. The matter would fall in Exception-4 as well because the death was committed without any premeditation in a sudden fight and heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. The prosecution evidence shows that the accused-appellant had gone to the residence of the deceased without any arm and without any premeditation to commit the murder of deceased. He had gone their on invitation of PW-9 Nani Bai. When the deceased Sita Bai heard them talking to each other, she became infuriated and chased the accused-appellant. She caught hold of him and gave him two-three slaps and in the heat of passion upon a sudden quarrel, the appellant may have caused her death. The offence would thus hardly travel beyond the scope of Section 304 Part-II Indian Penal Code and, therefore, even if the conviction is maintained, it must be altered from Section 302 to one under Section 304 Part-II Indian Penal Code and considering that the appellant has already remained behind the bars for more than ten years, sentence should be reduced to the period already undergone by him in jail. In support of his arguments, learned counsel relied on the judgement of Supreme Court in Chamru Budhwa v. State of Madhya Pradesh-1954 Cri.L.J. 1676 (SC) and Shankar v. State of Madhya Pradesh- AIR 1979 SC 1532 . 9. Per contra, Shri J.R. Bijarnia, learned Public Prosecutor opposed the appeal and submitted that the offence of the appellant is conclusively proved beyond reasonable doubt on the evidence available on record. He submits that PW-9 Nani Bai had, at the earliest opportunity, disclosed the name of the appellant. Though, she in the beginning kept silent, because she being a girl of tender age was not mature enough to face such an extraordinary situation. She did so also because she was threatened by the appellant that if she disclosed the incident to anyone, the accused-appellant would murder not only her but also her father, brother and other family members. Learned Public Prosecutor submitted that it is only when her sister PW-15 Manbhar Bai discovered the weapon of offence i.e. kulhari, which was blood stained and also the pieces of blanket, that Nani Bai broke her silence and narrated the entire incident to the family members and the police. Learned Public Prosecutor submitted that it is only when her sister PW-15 Manbhar Bai discovered the weapon of offence i.e. kulhari, which was blood stained and also the pieces of blanket, that Nani Bai broke her silence and narrated the entire incident to the family members and the police. It was therefore that her supplementary statement under Section 161 Cr.P.C. was recorded on 7.11.2002. She has substantially repeated the same version when her statement under Section 164 Cr.P.C. was recorded and thereafter when her statement in Court was recorded as PW-9. Learned Public Prosecutor submitted that the manner in which the incident has taken place is amply proved and corroborated from the circumstances obtaining on the record. In this connection, learned Public Prosecutor referred to the site plan Ex.P3 proving the fact that the deceased was murdered at place 'B' and thereafter her body was dragged to place 'A', where she was originally sleeping, so as to make it appear that she was still sleeping, by covering her body with another blanket. There were marks of blood on this trail of 10 feet from place 'B' to 'A'. Blood spread from the injury of the deceased was also found lying at place 'E' close to place 'A'. Police has recovered the blood smeared sand from the place 'B' vide Ex.P16. It has also recovered the blood stained clothes of deceased Sita Bai vide Ex.P17. The seizure memo of blood stained clothes produced by Narsingh Dass was made vide Ex.P4 and seizure memo of kulhari was produced by Narsingh Dass vide Ex.P5. All these memos and the site inspection plan has been proved by Investigating Officer PW-16 Ghan Shyam Sharma. Learned Public Prosecutor has relied on the judgement of Supreme Court in Ramratan & Ors. v. The State of Rajasthan-1962 (1) Cri.L.J. 473 and in Major Singh & Anr. v. State of Punjab- (2006) 10 SCC 499 wherein it was held that if the sole eye witness of the incident, who was a natural witness clearly deposed about the incident in detail and his testimony is found to be believable, conviction can be recorded. Learned Public Prosecutor argued that statement of PW-9 Nani Bai is trustworthy. Her version corroborated by evidence of PW-16 Ghanshyam Singh, Investigating Officer, who had inspected the spot as well as postmortem report, the conviction of the accused as recorded by court below must be upheld. Learned Public Prosecutor argued that statement of PW-9 Nani Bai is trustworthy. Her version corroborated by evidence of PW-16 Ghanshyam Singh, Investigating Officer, who had inspected the spot as well as postmortem report, the conviction of the accused as recorded by court below must be upheld. It is therefore prayed that the appeal be dismissed. 10. We have given our anxious consideration to the rival submissions and perused the material available on record. 11. Even though it is a fact that PW-9 Nani Bai, the sole witness of the incident in her first statement to the police under section.161 Cr.P.C. on 2.11.2002, the date on which the FIR was registered, has not alleged that it was the accused-appellant Bhagwan Singh, who murdered her mother Sita Bai, but delay of five days that was caused by her in making this disclosure to her family members and the police has to be viewed in the facts and circumstances of the case, especially her tender age and purpose for which she invited the accused-appellant to her house in the mid night of the fateful day. Evidence has shown that while the accused-appellant Bhagwan Singh, aged 32 years at that time, was a Peon in the private school adjoining to the house of PW-9 Nani Bai, Nani Bai was merely 18 years old girl. She had been insisting upon her mother to send her to her in-laws place because she wanted to meet her husband. Her mother Sita Bai, however used to object to this. The evidence has come on record that her mother used to object because the sister of her husband was also married to a cousin of Nani Bai and she was also not being sent by in-laws of Nani Bai. At this adolescent age, Nani Bai came in contact with Bhagwan Singh, who was a Peon in the school adjoining to her school. He also used to work as a Guard in the school during night. She felt attraction for him and he took undue advantage of this situation. She talked to her two-three times. When the accused-appellant told her that she wanted to come to her house to make love, Nani Bai could not resist the offer. She has stated that she called her in mid night, but when he came it was already about 3.00 AM in the midnight. She talked to her two-three times. When the accused-appellant told her that she wanted to come to her house to make love, Nani Bai could not resist the offer. She has stated that she called her in mid night, but when he came it was already about 3.00 AM in the midnight. She enquired why he came late and while they were talking, her mother woke up and objected to the presence of accused-appellant and then what happened has already been discussed by us fairly in details above. PW-9 Nani Bai thus had been having a guilty conscious as her mother was murdered because of her reason since she herself invited the accused to her house and it is this fact which she wanted to conceal from the family members. Besides, she was also threatened by accused-appellant that if she disclosed this fact to anyone in the family, he would murder not only her, but also her brother, father and other family members. Explanation about delayed disclosure by her has to be, therefore, accepted in the light of the fact that the day, the weapon of murder and the broken pieces of blanket were suddenly discovered by her elder sister PW-15 Manbhar Bai, Nani Bai then told the whole story to the family members and then to the police. The conduct of PW-9 Nani Bai, keeping in view her age and the manner and purpose for which she invited accused-appellant Bhagwan Singh to her house in the midnight, does not show that her conduct in any manner was unnatural. It is trite law that conviction can be recorded on the testimony of a sole witness if the evidence inspires confidence and find sufficient corroboration. Reference in this connection is made to the cited judgements of Supreme Court in 1962 (1) Cri.L.J. 473, supra and (2006) 10 SCC 499 , supra. 12. In view of the detailed discussion that we have made above, we find the testimony of PW-9 Nani Bai trustworthy and safe to record the conviction of accused-appellant. 13. Coming now to the alternative submission that conviction ought to be recorded for offence under section.304 Part-II and not under section.302 of Indian Penal Code. 12. In view of the detailed discussion that we have made above, we find the testimony of PW-9 Nani Bai trustworthy and safe to record the conviction of accused-appellant. 13. Coming now to the alternative submission that conviction ought to be recorded for offence under section.304 Part-II and not under section.302 of Indian Penal Code. We must observe that there may be cases which may fall within both Exceptions-1 and 4, but present matter is not such a case, as would be seen from the reasons we shall presently give, which can be said to fall in both the Exceptions. Contention that this matter would fall in Exception (1) to Section 300 of Indian Penal Code cannot be accepted because for a case to fall in Exception-1, what is required is that the evidence should prove that the offender was deprived of power of self control by both "grave and sudden provocation" in causing death of the person, who gave such provocation. In order to attract this exception, the provocation should be both 'grave' and 'sudden'. Evidence shows that though it was indeed a sudden provocation, but the fact that the deceased slapped the accused two-three times, cannot be construed so grave provocation as to justify killing of deceased Sita Bai. Exception-1 is subject to three provisos. Besides, the Explanation to Section 300 of Indian Penal Code provides that whether the provocation was "grave and sudden" enough to prevent the offence from amounting to murder is a question of fact. In the present case, although it may have been a sudden provocation, but it cannot certainly be held to be a grave provocation so as to justify invocation of Exception-1. However, for an offence to fall within Exception-4 to Section 300 of Indian Penal Code what is required is that the offence is committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. In the instant case, evidence clearly shows that the accused had gone to the house of deceased on invitation by her daughter PW-9 Nani Bai. He had not carried any arms with him, which means that he was not armed. They had been having love affairs for quite some time and it is therefore that he had gone to meet her beloved. He had not carried any arms with him, which means that he was not armed. They had been having love affairs for quite some time and it is therefore that he had gone to meet her beloved. The evidence therefore does not prove that he had gone there with premeditation. When he was chased by the deceased Sita Bai, who caught him and slapped him two-three times, the accused-appellant in a sudden fight, in the heat of passion upon a sudden quarrel, inflicted a kulhari blow on her neck. Although it was alleged by PW-9 Nani Bai that the accused inflicted two-three blows by kulhari, but evidence of PW-14 Dr. Mangi Lal has not proved that fact. What has been proved is that only one injury was received by the deceased. That means that accused-appellant in the heat of passion gave only one blow on head below the ear of the deceased. This clearly shows that he did not repeat the blow and therefore he cannot be said to have taken undue advantage or acted in an unusual manner. The offence would therefore fall within Exception-4 to Section 300 Indian Penal Code. On evidence, it can be held that the accused-appellant certainly inflicted injuries on the body of the deceased with the knowledge, but without intention that this injury was likely to cause her death, the offence would therefore be culpable homicide not amounting to murder constituting offence under section.304 Part-II of Indian Penal Code. 14. The conviction and sentence of accused-appellant Bhagwan Singh under section.302 of Indian Penal Code is therefore altered to one under Section 304 Part II of Indian Penal Code. The accused-appellant has already remained behind the bars for more than ten years. He is, therefore, convicted under section.304 Part-II of Indian Penal Code and is sentenced to the period already undergone by him. He may be released forthwith if not required in any other case.The appeal is partly allowed in the manner indicated above.Appeal Partly Allowed. *******