JUDGMENT 1. - The instant appeal has been preferred by the appellants challenging the judgment dated 11.12.2008 passed by the learned Additional Sessions Judge (Fast Track), Banswara in Sessions Case No. 64/2008, whereby the appellants were convicted and sentenced as below : Under Section 304 Part-I I.P.C. 10 years' R.I. and to pay a fine of Rs. 1,000/- and in default of payment of fine to further undergo two months' imprisonment. Under Section 447 I.P.C. 3 months R.I. Both the sentences were ordered to run concurrently. 2. Succinctly stated the facts of the case are that one Roop Singh submitted a report to the SHO Police Station Sallopat on 25.7.2008 at 5 A.M. As per the allegations set out in the report, the first informant's father Jeta was having four sons viz Roop Singh, Baram (from Jeta's first wife), Kasna and Virma (from Jeta's second wife) with Kasna being the eldest and Baram was the youngest. The first informant further alleged that Parbat Singh and Risham came to his house at Jhalod, Gujarat in a jeep. The first informant was informed by Parbat that in the night at about 10 O'clock, he heard sounds of shouting coming from the house of Baram. On reaching there he saw that Surya @ Suresh was lying in a bloodied condition in the courtyard of Baram's house, and nearby, Rasu, Kasna and Baram were fighting with each other. Rasu was having a sword in his hand. Baram ran towards the field of Hurta and was pursued by Rasu and Kasna with Rasu having the sword in his hand. Prithvi Singh, Baram's wife Smt. Samudi and Baram's daughter Ravina also ran after them with a torch. When Baram reached the field of Hurta, Rasu gave him sword blows on the back of the head and the neck. Rush's father Kasna told him that he should be done away and asked for the sword on which Rasu passed on the sword to Kasna. Roop Singh, Samudi and Ravina requested them not to assault the deceased but to no avail and Kasna also gave swmrd blow's on the neck, head, wrist and shoulder etc. of the deceased. Rasu and Kasna also broke the left leg of the deceased. The first informant was informed that the three family members had seen the incident in torch light. Thereafter, the first informant accompanied Parbat Singh and Risham to his village. of the deceased. Rasu and Kasna also broke the left leg of the deceased. The first informant was informed that the three family members had seen the incident in torch light. Thereafter, the first informant accompanied Parbat Singh and Risham to his village. On reaching the house of Baram, Lalu and Heera were found sitting there. There, Kasna and Rasu came and confessed before the first informant that they had committed the crime and had killed Baram and that they should be saved. It was also mentioned in the report that Rasu and Kasna had earlier on also quarrelled with the deceased over property and due to this enmity, they launched an assault on Baram and killed him. The first informant allegedly gave a telephonic information to the Police Station and then proceeded to file the written report. 3. On the basis of this report, an F.I.R. No. 68/2008 was registered at the Police Station Sallotpat for the offence under Section 302/34 I.P.C. and investigation commenced. The Investigating Officer reached the scene of occurrence and on inspection, it was found that the dead body of Surya @ Suresh was lying in the house of Baram. The dead body of Baram was found lying in the field of Hurta with sharp weapon injuries on his person. Blood stained soil was collected from the scene of occurrence. The blood stained clothes of the deceased were also seized. The dead body of Baram was subjected to post mortem and as per the postmortem report Ex.P-14, the deceased Baram was found having 5 incised wounds on his body. Injuries No. 1 and 2 being on the head region. The injury No. 3 being on the index finger of the hand. Injury No. 4 being on the left big toe. Injury No. 5 being a depressed fracture on the left tibia bone. Injury No. 6 being an incised wound on intra scapular region. Underlying the injury Nos. 1 and 2 the brain was found cut in an area of 18 x 8 cm. The cause of death was opined to be hemorrhage due to the injuries on the head and neck. The accused were arrested and the blood stained clothes of both the accused were recovered. A sword was recovered at the instance of the accused Rasu. 1 and 2 the brain was found cut in an area of 18 x 8 cm. The cause of death was opined to be hemorrhage due to the injuries on the head and neck. The accused were arrested and the blood stained clothes of both the accused were recovered. A sword was recovered at the instance of the accused Rasu. At the conclusion of the investigation, the police filed a charge-sheet against the appellants for the offences under Sections 302/34 and 447 of the I.P.C. The case was committed to the Court of learned Additional Sessions Judge (Fast Track), Banswara. The learned trial Judge framed charges against the accused for the offences under Sections 447 and 302 of the I.P.C. The accused pleaded not guilty and claimed trial. The prosecution in support of its case examined 18 witnesses. The accused in their statements recorded under Section 313 of the Cr.P.C. denied the allegations of the prosecution. The appellant Rasu pleaded total ignorance with ^the incident, whereas the accused Kasna took a plea that his son Surya had been killed by Baram at his house. However, the accused did not choose to lead any defence. The learned trial Judge at the conclusion of the trial, proceeded to convict and sentence the appellants as above anti hence, this appeal. 4. Shri Mridul Jain, learned counsel whilst arguing the appeal on behalf of the appellants submitted that the incident wherein Iwo persons lost their lives is not disputed. However, he contended that the appellants and Surya were closely related to the deceased Baram. They had gone to the house of Baram for discussing a dispute. There Baram started the quarrel and assaulted Surya with a sword killing him instantly. Learned counsel urged that it is under the grave and sudden provocation received from the act of Baram that the accused raised the arms and then caused the injuries to Baram. Referring to the statement of star witness Smt. Samudi PW-9 wife of the deceased learned counsel submitted that Samudi in her testimony admitted that the sword which was in the hand of Baram was snatched by Rasu and Kasna and then Baram was done to death by the very same sword. Learned counsel submitted that the case of the prosecution that the appellants went to the house of Baram armed with a sword is totally false. Learned counsel submitted that the case of the prosecution that the appellants went to the house of Baram armed with a sword is totally false. He urged that in view of the admission made by Samudi regarding the sword of Baram being used by Rasu to assault also stands corroborated by the fact that only one sword has been recovered in this case allegedly at the instance of Rasu. Learned counsel thus submitted that as Ihe deceased without any justification killed Surya, the son of the appellant Kasna by giving him a sword blow, the appellants were given a seriously grave and sudden provocation. They caused the injuries to Baram acting under this grave; and sudden provocation. Thus learned counsel contended that the case of the prosecution at best could extend to the offence under Section 304 Part-11 I.P.C. Thus learned counsel submitted that the appeal filed by the appellants deserves to be accepted to the extent of the nature of offence. 5. Per contra, learned Public Prosecutor and the learned counsel appearing for the complainant Shri Mahmood Aslam Khan have vehemently opposed the submissions of the learned counsel for the appellants. It was contended that the appellants went to the house of Baram in the dead of the night armed with sword. Thus, their intention was to commit an offence. Not only this, they raised a quarrel with Baram without any justification and thus, Baram was left with no option but to defend himself by bringing a sword. Learned counsel thus urged that the appellants have already been dealt with leniently by the trial Court in not convicting them for offence under Section 302 I.P.C. Learned counsel urged that the appellants acted in an extremely cruel fashion by pursuing the deceased from his house and then causing him repeated blows by a sword on the vital parts of the body, thus, the learned counsel urged that there is no scope for interference in the well reasoned judgment of conviction as recorded by the learned trial Court. 6. Heard and considered the arguments advanced at the bar and perused the judgment impugned and the record. 7. The sphere of consideration in this case is very limited because the incident is admitted on both the sides. The three star witnesses of the prosecution are PW-5 Parbat Singh, PW-8 Sushri Ravina and P.W-9 Samudi. 6. Heard and considered the arguments advanced at the bar and perused the judgment impugned and the record. 7. The sphere of consideration in this case is very limited because the incident is admitted on both the sides. The three star witnesses of the prosecution are PW-5 Parbat Singh, PW-8 Sushri Ravina and P.W-9 Samudi. The version, which has been set out in the F.I.R. and the examination in chief of all these three witnesses is that when the appellants came to the-house of the deceased, the appellant Rasu was having an open sword in his hand. However, when the evidence is appreciated minutely, it becomes apparent that the said version is palpably false. The reasons for arriving at this conclusion are enumerated hereunder:- (i) Parbat Singh PW-5 went to the scene of occurrence after hearing the shouts. He stated that when he reached the house of Baram, he saw that Surya was lying in a bloodied condition on the floor of the courtyard of Baram's house. He also slated that Rasu was also having sword in his hand. He did not state that Barma was having any sword in his hand. (ii) PW-9 Samudi in her cross-examination admitted that after Baram caused injuries to Surya by a sword, he started running with the sword shouting that he was having a sword and that if he was assaulted, he would do away with everybody and thereafter, the accused Rasu and Kasna snatched the sword from Baram and then killed him with the same sword. (iii) No sword was recovered by the Investigating Officer from the scene of occurrence. Only one sword has been recovered in this case allegedly at the instance of the accused Rasu. 8. Thus, this Court has no hesitation in arriving at a conclusion that the sword with which Baram was assaulted by the appellants was the sword belonging to Baram himself. The admission made by PW-9 Samudi regarding the accused having snatched the sword of Baram and then having caused the injuries to him by the very same sword is a very significant fact and apparently it is the only and the logical conclusion which can be derived from all the circumstances available on record. The admission made by PW-9 Samudi regarding the accused having snatched the sword of Baram and then having caused the injuries to him by the very same sword is a very significant fact and apparently it is the only and the logical conclusion which can be derived from all the circumstances available on record. The trial Court at page 18 of its judgment has recorded the satisfaction that the fact regarding the accused having a sword with them when they went to the house of Baram was not corroborated by any independent evidence and thus he recorded a finding that the accused did not carry any sword to the scene of occurrence. On the same page of the judgment, the learned trial Judge recorded that the accused might be having a sword with them but the Investigating Officer did not make proper investigation on this issue. This Court is of the opinion that the conclusion of the trial Court in this regard is erroneous. This Court has already recorded a finding that the only sword which was used in this incident belonged to the deceased Baram himself. 9. Now the question which this Court has to examine is as to what would be the nature of offence, which the accused committed in this case. As is the admitted case of the prosecution, the accused went to the house of Baram in relation to some dispute. Baram brought out a sword and assaulted Surya @ Suresh with it and gave him a fatal blow killing him instantly. It is the admitted case of the prosecution witnesses that Surya was not armed with any weapon. Thus, the two appellants Kasna (father of the deceased Suresh) and Rasu (brother of the deceased Suresh) on seeing Suresh being killed can be assumed to have received a grave and sudden provocation by this act of Baram. It is only after this assault made by Baram on Surya that the accused snatched the sword from his hand and caused him the injuries. Hence, there cannot be any two views on the issue that the injuries which were caused by the appellants to the deceased Baram were whilst acting under the grave and sudden provocation given to them by the act of Baram in killing Surya. Hence, there cannot be any two views on the issue that the injuries which were caused by the appellants to the deceased Baram were whilst acting under the grave and sudden provocation given to them by the act of Baram in killing Surya. Thus, the case of the appellants squarely falls under the Exception-I of Section 300 of the I.P.C. Once the case of the appellants is found to be falling in Exception-I of Section 300 of the I.P.C., the offence for which they can be held guilty would be under Section 304 Part-II of the I.P.C. 10. Accordingly, the appeal deserves to be accepted in part and is hereby allowed in part. The conviction of the appellants for the offence under Section 304 Part-I I.P.C. is converted into the offence under Section 304 Part-II of the I.P.C. They are sentenced to 7 years rigorous imprisonment for the offence under Section 304 Part-II of the I.P.C. The conviction and sentence awarded to the appellants for the offence under Section 447 I.P.C. is maintained.Appeal partly allowed. *******