JUDGMENT : V.M.Deshpande, J. 1. Being aggrieved by the judgment and order of conviction passed by the learned Additional Sessions Judge 9, Nagpur, dated 20th of March, 2014, in Session Trial No.41 of 2012, the appellants are before this Court. The appellant no.1 was accused no.1 before the Court below whereas the appellant nos.2 and 3 were accused nos.2 and 3, respectively, during the trial. They will be referred by their original position in the present judgment. By the impugned judgment, the accused no.1 was convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.2000/-and in default of payment of fine to undergo further rigorous imprisonment for six months. Accused nos.2 and 3 though acquitted of the offence punishable under Section 302 read with Section 109 of the Indian Penal Code, stood convicted for the offence punishable under Section 201 read with Section 34 of the Indian Penal Code and were directed to suffer rigorous imprisonment for two years and to pay a fine of Rs.500/-each and in default of payment of fine to undergo further rigorous imprisonment for one month. FACTUAL MATRIX :- 2. The prosecution case, as it is unfurled during the course of the trial, is as under : (A) Deceased is Manish Gharat. He was younger brother of Pritam Gharat (PW 3), the first informant. He was residing with his family consists of Pritam, their mother Rukhmabai, Kalpana –wife of Pritam, and their two children. Deceased Manish was auto rickshaw driver. The deceased and accused persons are residents of same locality. Deceased Manish was having love affair with Sarika, the first wife of accused no.1 Nilesh. They were in love when Sarika used to reside with accused no.1. Prior to 2 – 3 years of the incident Sarika started residing separately with deceased Manish in a separate room. She left accused no.1 Nilesh. She gave birth to a child from deceased Manish. After she gave birth to a son from Manish, she left Manish also along with her son. (B) On 14th of September, 2011, Vishal Kale (PW 14), P.S.I., was attached to Police Station Ganeshpeth. At about 10.30 a.m. two ladies by name Smt. Rukhmabai Gharat (the mother of the deceased) and Smt. Shakun Shaneshwar (PW 6) came to the Police Station. (B) On 14th of September, 2011, Vishal Kale (PW 14), P.S.I., was attached to Police Station Ganeshpeth. At about 10.30 a.m. two ladies by name Smt. Rukhmabai Gharat (the mother of the deceased) and Smt. Shakun Shaneshwar (PW 6) came to the Police Station. They informed Shri Vishal Kale, PSI, that accused no.1 Nilesh and one Javed Khan and their associates are assaulting Manish Gharat with sharp weapons near the house of one Ramdas Shelke. Accordingly, P.S.I. Shri Kale took the entry of said information in Station diary (Exh.73). On getting the aforesaid information, Police Officer Vishal Kale proceeded to the spot of incident in a Police vehicle along with Smt. Rukhmabai and Smt. Shakun Shaneshwar (PW 6). On reaching to the spot, he noticed that the bloodstains on the footpath were washed out. However, some bloodstains were noticed by him on the tiles of footpath. He immediately called 'I Car' from the Control Room. He also called dogunit and a team of Chemical Analyzers. He called panch witnesses and prepared spot panchanama in their presence (Exh.26). The Chemical Analyzers' team also reached to the spot in the meanwhile. They collected bloodstains from the spot of the incident on a special type of cloth and said was handed over to the Police Officer Shri Kale, who seized the same under the spot panchanama itself. While drawing of spot panchanama was in progress, Pritam Gharat (PW 3) came to the spot. He informed P.S.I. Shri Kale that accused no.1 Nilesh and one Javed Khan have assaulted Manish by means of knife and stone. After completion of the spot panchanama, PSI Kale returned to the Police Station along with the seized property. Pritam Gharat also came to the Police Station and lodged his oral report (Exh.37). On the basis of the said report a Crime was registered vide Crime No.181 of 2011 for the offence punishable under Sections 302, 147, 148, 149, 201 read with Section 34 of the Indian Penal Code against the accused persons and after the registration of the offence he himself took the investigation of the said Crime. (C) Oral report of Pritam Gharat shows that he is a fruit vendor. According to the oral report of Pritam, on 13th of September, 2011, a dispute occurred in between accused no.1 and deceased on account of Sarika. (C) Oral report of Pritam Gharat shows that he is a fruit vendor. According to the oral report of Pritam, on 13th of September, 2011, a dispute occurred in between accused no.1 and deceased on account of Sarika. The said dispute occurred in the night of 13th of September, 2011 and therefore on 14th of September, 2011 deceased did not go for his work. Similarly, first informant who used to go for vending fruits at the Central Bus Stop at about 9 O'clock, remained in the house. The First Information Report further states that on 14th of September, 2011 first informant Pritam Gharat, deceased Manish and their friends, Amit Shelke, Surendra Shahu, Mukesh Thaware and Manoj Maind were in front of the house of Nitin. That time, there was a quarrel going on in the family of accused no.1 Nilesh, therefore, deceased went near the house of accused no.1. At about 9.45 a.m. they all heard. Therefore, they all went near the house of one Ramdas Shelke. That time, Manish was found to be lying on the footpath in front of the house of Ramdas Shelke and accused no.1 was seen to be assaulting deceased on his head by means of stone and one Javed Khan was having knife in his hand and accused no.2 Rubina – second wife of accused no.1 and accused no.3 Jamilabegum - the mother-in-law of accused no.1 were exhorting accused no.1. When they noticed the presence of the first informant and others, accused no.1 Nilesh and Javed Khan ran away from the spot. The accused nos.2 and 3 remained there. The injured was taken in the auto rickshaw of Amit Shelke. He was brought to the Government Medical College and Hospital, Nagpur. There, he was declared dead. (D) Investigating Officer, on the day of the incident itself recorded statement of Ravi Thakare (PW 4) who had seen accused nos.2 and 3 washing the blood stains from the footpath and also taking the knife and stone from the spot of incident to their house. Accused nos.2 and 3 were arrested under arrest Memos (Exh.75 and 76). So also, Shabana, a juvenile in conflict with law was also brought to the Police Station. Inquest was conducted at Medical College and Hospital Nagpur by PSI Tripati. Inquest panchanama is admitted during the course of the trial and it was exhibited as Exh.27. Accused nos.2 and 3 were arrested under arrest Memos (Exh.75 and 76). So also, Shabana, a juvenile in conflict with law was also brought to the Police Station. Inquest was conducted at Medical College and Hospital Nagpur by PSI Tripati. Inquest panchanama is admitted during the course of the trial and it was exhibited as Exh.27. PSI Tripati also sent dead body for Post Mortem. He also handed over the provisional death certificate and inquest panchanama to PSI Kale who attached the same to the case diary. In the intervening night of 14th of September, 2011 and 15th of September, 2011, P.S.I. Kale arrested accused no.1 under arrest panchanama (Exh.78). On 15th of September, 2011 the clothes of the deceased which were brought from the hospital were seized under the Seizure memo (Exh.29). The clothes were under the sealed condition. The Investigating Officer sent those sealed clothes to the Chemical Analyzer with viscera, blood sample of the deceased and sample of hair of the deceased under the requisition letter. The Chemical Analyzer received those articles on a very same day. PSI Kale recorded statement of Smt. Shakun Shaneshwar. He also seized clothes of accused nos.2 and 3 under seizure Memos (Exh.84 ad 85), respectively. On 16th of September, 2011, PSI, Kale sent accused nos.1 to 3 and son of accused no.1 by name Aryan for collecting their blood samples vide requisition Exhs.86 and 87. Those were seized by the Investigating Officer under Seizure memo Exhs. 61 to 64. He also recorded statement of various witnesses. On 17th of September, 2011, Investigating Officer sent seized blood sample to the Chemical Analyzer. On the said day when accused no.1 Nilesh was in his custody, he made a disclosure statement in presence of panchas by which he agreed to produce a towel which he was wearing at the time of the incident, which he had concealed under the Steel Almirah in the kitchen at the house of Javed Khan. Accordingly, Investigating Officer prepared memorandum panchanama (Exh.90). Thereafter, Police party along with accused no.1 proceeded to the spot shown by accused no.1. It was the house of Javed Khan. One boy namely, Shaharukh was in the house. Accused no.1 asked Shaharukh to open the door. Then, he entered into the house followed by Police party and the panchas. Accordingly, Investigating Officer prepared memorandum panchanama (Exh.90). Thereafter, Police party along with accused no.1 proceeded to the spot shown by accused no.1. It was the house of Javed Khan. One boy namely, Shaharukh was in the house. Accused no.1 asked Shaharukh to open the door. Then, he entered into the house followed by Police party and the panchas. Accused no.1 went to the kitchen and produced one towel from under the Steel Almirah which was stained with blood. The said was seized under the seizure panchanama (Exh.91). On 18th of September, 2011, accused no.2 Rubina made her a confessional statement in presence of panchas and agreed to show the place and agreed to produce the knife, bucket and the stone where she had kept. Accordingly, a panchanama was prepared and the admissible portion is at Exh.95. Consequent to the said information, the Investigating Officer with accused no.2 and panchas proceeded towards the direction as pointed out by accused no.2 Rubina. She led the Police party to her house. She opened the lock of her house, then she produced a big knife from beneath the wooden cot. She had produced one bucket which was kept near the Cooler. She also led them to the lane and produced a big stone from the mud. The recovery of all these articles is at Exh.96. The Investigating Officer also sent the seized knife and stone to the Medical Officer for opinion along with requisition letter (Exh.69). The Medical Officer examined those weapons and opined that the injuries received by deceased could be caused by those weapons. The Investigating Officer then sent those weapons to the Chemical Analyzer for analysis under requisition (Exh.164). After completion of investigation, the Investigating Office was of the view that the sufficient material is collected to send the accused persons for trial therefore, he presented the Chargesheet in the Court of Judicial Magistrate (F.C.) in which Javed Khan was shown as absconding. The learned Judicial Magistrate noticed that the offences are exclusively triable by the Court of Session. Consequently, he passed the committal order. The learned Additional Sessions Judge framed the charges against the accused persons. They abjured their guilt and claimed for their trial. The prosecution in order to bring home their guilt examined eighteen witnesses. Two police personnel were examined as Court witnesses. The accused persons were also examined under Section 313 of the Code of Criminal Procedure. The learned Additional Sessions Judge framed the charges against the accused persons. They abjured their guilt and claimed for their trial. The prosecution in order to bring home their guilt examined eighteen witnesses. Two police personnel were examined as Court witnesses. The accused persons were also examined under Section 313 of the Code of Criminal Procedure. According to the accused no.1 Nilesh, on the day of the incident he was repairing his auto rickshaw. That time, his son Aryan, aged about 4½ years, was standing there. Deceased Manish came and he assaulted Aryan. That time accused no.1 tried to save himself and his son. Aryan received injuries on his head. Thereafter, Aryan was taken to the Medical College by accused no.2 Rubina. The learned Judge of the Court below after appreciation of the prosecution case was of the view that the prosecution has succeeded in bringing home the guilt of the accused no.1 for the offence punishable under Section 302 of the Indian Penal Code and also for the offence punishable under Section 201 read with Section 34 of the Indian Penal Code against the accused nos.2 and 3 and therefore, convicted and sentenced them as observed in opening paragraph of the judgment. The learned Judge also directed to preserve the muddemal since accused Javed Khan is absconding and the Investigating Officer was directed to file a separate Chargesheet against him as soon as he is apprehended. 3. We have heard Shri R.M.Daga with Shri C.R.Thakur, the learned Counsel for the appellants and Shri T.A.Mirza, learned Additional Public Prosecutor for the State. With their able assistance, we have gone through the record and proceedings minutely. The only submission that was advanced before this Court by the learned counsel for the appellants is that even if it is found by this Court that the appellant no.1 is responsible for the death of Manish, he cannot be convicted for the offence punishable under Section 302 of the Indian Penal Code. According to him, the appellant no.1 at the most can be convicted for the lesser offence. The standpoint of the appellant is combated by the learned Prosecutor by inviting our attention to the evidence of the prosecution witnesses and he submitted that the submission of the learned counsel for the appellants for lesser offence has no merit and therefore prayed for dismissal of the appeal. EVALUATION OF THE PROSECUTION CASE :- 4. The standpoint of the appellant is combated by the learned Prosecutor by inviting our attention to the evidence of the prosecution witnesses and he submitted that the submission of the learned counsel for the appellants for lesser offence has no merit and therefore prayed for dismissal of the appeal. EVALUATION OF THE PROSECUTION CASE :- 4. The prosecution has examined Dr. Nilesh Tumram as Prosecution Witness No. 13. Dr. Tumram has conducted autopsy over the dead body of Manish. The dead body of Manish was brought to the mortuary by Police Constable of Police Station Ganeshpeth. He noticed following external injuries which he has duly mentioned in Col.No.17 of the postmortem report. Those are as under :- (i) Lacerated wound over right side of forehead frontal prominance of size 2 cm. x 1 cm. x bone deep, obliquely placed. (ii) Lacerated wound 2 cm. below and lateral to injury no.(i) of size 3 cm. x 2 cm. x bone deep, underlying bone fracture. Injury was obliquely placed. (iii) Lacerated wound 1 cm. below injury no.(ii) of size 7 cm. x 1 cm. x bone deep, horizontally placed underlying bone fracture. (iv) Cut laceration over right side of forehead 2 cm. medial to injury no.(iii) of size 6 cm. x 1 cm. x bone deep, obliquely placed. (v) Cut laceration over left frontal prominence of size 4 cm. x 0.5 cm. x bone deep, obliquely placed. (vi) Lacerated wound 2 cm. above left eyebrow 4 cm. x 0.5 cm. x bone deep, obliquely placed, margins abraded. (vii) Lacerated wound over left zygomatic region of size 5 cm. x 2 cm. x bone deep, obliquely placed, vertically placed. (viii) Two cut lacerations over left parietal prominence 1 cm. apart of size 7 cm. x 1 cm. x bone deep and 4 cm. x 1 cm. bone deep medial to lateral, obliquely placed. (ix) Contusion over left side of face of size 15 cm. x 10 cm., reddish in colour. (x) Multiple contused abrasion over lower half of face on right side and nasal region of size 3 cm. x 2 cm. to 1 cm. x 0.5 cm.s reddish in colour. (xi) Lacerated wounds over chine in midline 2 cm. x 1 cm. x bone deep vertically places, margins abraded. (xii) Two lacerated wounds over left mandibular region proximal half, 2 cm. x 1 cm. x bone deep each, 1 cm. x 2 cm. to 1 cm. x 0.5 cm.s reddish in colour. (xi) Lacerated wounds over chine in midline 2 cm. x 1 cm. x bone deep vertically places, margins abraded. (xii) Two lacerated wounds over left mandibular region proximal half, 2 cm. x 1 cm. x bone deep each, 1 cm. apart placed side to side. (xiii) Multiple contused abrasion over both supraclavicular region of size 3 cm. x 2 cm. to 1 cm. x 0.5, reddish in colour. (xiv) Multiple contusions over front lateral aspect of left arm, 5 cm. x 3 cm. to 2 cm. x 1 cm., reddish in colour. (xv) Abrasion over right side of chest, 5 cm. below right nipple of size 10 cm. x 2 cm., horizontally placed, reddish in colour. (xvi) Contusion over back of left elbow of size 5 cm. x 3 cm., reddish in colour. (xvii) Multiple contused abrasion over back of right and 2 cm. x 1 cm. to 1 cm. x 0.5 cm., reddish in colour. (xviii) Multiple contused abrasion over front of left knee of size 2 cm. x 1 cm. to 1 cm. x 0.5 cm., reddish in colour. He noticed following internal injuries which he has mentioned in Col.No.19. “under scalp haemotoma over both frontal and occipital region about 10 grams red in colour. There was depressed fracture over frontal bone of size 10 cm. x 2 cm., horizontally placed in midline. Fissured fracture over left occipital region obliquely placed extending towards right parietotemporal bone for 12 cm. Fissured fracture over base of skull involving right and left cranial fossa for 10 cm. Horizontally placed. Dura was pale. Subarachnoid haemorrhage as thin red film all over brain surface area. Brain was pale. There were no other internal injuries on rest of the internal organs.” According to the Autopsy Surgeon, the internal and external injuries were antemortem and were sufficient in the ordinary course of nature to cause death. He proved the postmortem report (Exh.68). According to the Autopsy Surgeon, cause of death was “head injury”. After considering the evidence of Dr.Tumram and the Post Mortem Report (Exh.68) there is no doubt that Manish met homicidal death. 5. The next question is whether accused no.1 is responsible for homicidal death of Manish ? He proved the postmortem report (Exh.68). According to the Autopsy Surgeon, cause of death was “head injury”. After considering the evidence of Dr.Tumram and the Post Mortem Report (Exh.68) there is no doubt that Manish met homicidal death. 5. The next question is whether accused no.1 is responsible for homicidal death of Manish ? And if so, whether he is to be convicted for the offence punishable under Section 302 of the Indian Penal Code or for lesser offence. CRITICAL ANALYSIS OF EVIDENCE OF EYE WITNESSES :- 6. Prosecution has relied upon ocular version of five witnesses to establish the guilt of the accused persons. Out of those five eye witnesses, PW 2 Manoj Maind and Amit Shelke (PW 5) were declared hostile to the prosecution case during the trial. Pritam Gharat (PW 3), Shakunbai Saneshwar (PW 6) and Surendra Shahu (PW 8) are the eye witnesses in respect of the assault made by the accused no.1 on deceased Manish. Ravi Thakare (PW 4) is the witness who deposed about the acts of accused no.2 Rubina and accused no.3 Jamilabegum for proving the offence punishable under Section 201 of the Indian Penal Code against them. 7. PW 3 Pritam in his report (Exh.37) and from the witness box states about the presence of Manoj Maind (PW 2) and Amit Shelke (PW 5) in auto rickshaw in front of the house of Nitin Bisen. However, Manoj Maind (PW 2) flatly denies his presence in the locality itself. Though PW 5 Amit Shelke admits his presence in his auto rickshaw, he did not support the prosecution about the actual assault by accused no.1 but supports the prosecution case that in his auto rickshaw deceased was taken to the hospital as stated by the first informant in his report (Exh.37). The evidence of PW 5 Amit Shelke can safely be relied upon to that extent. 8. Sana Entry (Exh.73) discloses about the intimation of assault on Manish by Rukhmabai, the mother of the deceased. PW 14 Investigating Officer's evidence shows that when Rukhmabai had been to the Police Station, she was accompanied by Shakunbai (PW 6). Shakunbai (PW 6) is resident of Gujarwadi. Both, the deceased and accused no.1, are also resident of Gujarwadi. The evidence of Shakunbai (PW 6) as an eye witness is seriously challenged by the learned Counsel for the appellants for belated recording of her police statement. Shakunbai (PW 6) is resident of Gujarwadi. Both, the deceased and accused no.1, are also resident of Gujarwadi. The evidence of Shakunbai (PW 6) as an eye witness is seriously challenged by the learned Counsel for the appellants for belated recording of her police statement. On scrutiny of the evidence of this prosecution witness, it appears to us that she has given proper explanation for not disclosing the fact immediately to the police on account of her suffering from Asthma. As per the evidence of Shakunbai, she witnessed the assault by accused no.1 and absconded accused Javed Khan by means of knife in their hands. Due to the said assault Manish fell down and thereafter accused no.1 lifted a big stone, that time she shouted and on hearing her outcry the boys who were sitting in the auto rickshaw ran towards the spot. This is also corroborated by PW 8 Surendra Shahu that when he, Pritam Gharate (PW 3) and others were chitchatting in auto rickshaw they heard female call and therefore they reached near the house of Shelke. 9. The prosecution witness Pritam Gharat (PW 3), Shakunbai (PW 6) and PW 8 Surendra Shahu's evidence is consistent with each other that they noticed appellant no.1 dropping a big stone on the head of Manish when he was lying on the ground. Evidence of Shakunbai (PW 6) is also criticized by the learned counsel for the appellants to the effect that she is making exaggeration in respect of assault by accused no.1 by means of knife. He submitted that none of the other eye witnesses states about the same. They state about the holding of knife by absconded accused Javed Khan. Pritan Gharat (PW 3), Amit Shelke (PW 5) and Surendra Shahu (PW 8) rushed to the spot after they heard the female call. Thus, it is quite possible that they might not have witnessed the earlier part of assault by means of knife at the hands of accused no.1. The evidence of Shakunbai (PW 6) is free from any embellishment. Insofar as belated recording is concerned, her police statement is recorded on 15th of September, 2011 i.e. on very next day and for that also she has given explanation. The evidence of Shakunbai (PW 6) is free from any embellishment. Insofar as belated recording is concerned, her police statement is recorded on 15th of September, 2011 i.e. on very next day and for that also she has given explanation. In view of the consistent evidence of these three eye witnesses, one can safely reach to the conclusion that the accused no.1 is not only the author of the head injury caused to the deceased Manish but is also the author for other injuries appearing on the dead body of Manish. 10. During the course of the investigation, on the disclosure statement made by accused no.1, the towel, which he was wearing, was seized under seizure memo (Exh.91). That towel was stained with blood. Chemical Analyzer found blood of human origin on the said towel. DNA test reveals the blood of deceased on the towel of accused no.1. 11. From the aforesaid clinching evidence, there is no slightest doubt in our mind that the appellant no.1 is responsible for the death of Manish. WHETHER THE HOMICIDAL DEATH OF MANISH IS NOT MURDER ? :- 12. Section 299 of the Indian Penal Code defines culpable homicide. It reads as under :- “299. Culpable homicide :- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” 13. “300. Murder :- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly: - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1: - When culpable homicide is not murder :- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos” First. - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly. – That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly. - That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation. – Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Section 300 defines five exceptions wherein the culpable homicide would not amount to murder. Under exception 1 injury resulting into the death of the person would not be considered as murder when the offender has lost his self-control due to the grave and sudden provocation. 14. For considering this issue, it would be useful to reproduce herein below the observations of Their Lordships of Hon'ble Apex Court in State of Andhra Pradesh vs. Rayavarapu Punnayya and anr., reported in AIR 1977 SC 45 , which reads as under :- “12. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice versa. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice versa. Speaking generally 'culpable homicide' sans 'special Characteristics of murder' is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognizes three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree.' This is the gravest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree.' This is punishable under 1st part of Section 304. Then, there is 'culpable homicide of the third degree.' This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.” In the said Judgment, Their Lordships of the Apex Court after dealing with the complex issue has observed as under :- “21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such casual connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to “culpable homicide” as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of section 300, Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution to bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in Section 300. This is the stage at which the Court should determine whether the facts proved by the prosecution to bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third Clause of Sec.299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Penal Code.” 15. It would also be useful to refer to the law laid down in a reported case of K.M.Nanavati vs. State of Maharashtra reported in AIR 1962 SC 605 regarding what amounts to grave and sudden provocation, which reads as under : “85. The Indian law, relevant to the present enquiry, may be stated thus: (1) the test of “grave and sudden” provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to S.300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.” 16. With the above principles in mind, the Court will have to scrutinize the evidence to reach to the correct conclusion. 17. The spot of the incident is footpath in front of the house of one Ramdas Shelke. Evidence of PW 3 Pritam Gharat shows that the house of the accused no.1 is in front of the house of Ramdas Shelke. With the above principles in mind, the Court will have to scrutinize the evidence to reach to the correct conclusion. 17. The spot of the incident is footpath in front of the house of one Ramdas Shelke. Evidence of PW 3 Pritam Gharat shows that the house of the accused no.1 is in front of the house of Ramdas Shelke. Eye witness Shakunbai (PW 6) has admitted that accused no.1, who is also an auto rickshaw driver used to keep his auto rickshaw on the footpath of the incident. Similarly, as per the evidence of Amit Shelke (PW 5) the spot of incident was near the house of the accused. From the aforesaid consistent evidence available on record, it is clear that it is Manish, the deceased, reached to the spot of the incident. None of the prosecution witnesses nor the spot panchanama shows that the house of the deceased was simulated nearby to the house of the accused no.1 though they were from the same locality, to show that presence of deceased on the spot of incident as natural one. 18. Evidence of Shakunbai (PW 6) shows that at the time of incident the accused no.1 was wearing a towel, also the absconded accused Javed Khan was wearing a towel. The admissible portion of disclosure statement of accused no.1 shows that absconded accused Javed Khan is his brother-in-law. By the said disclosure statement he agreed to discover the place where the towel, which was on his person at the time of incident, was concealed. Accordingly, the said towel was seized and sent to the Chemical Analyzer. No other wearing apparel was seized from the accused no.1. Wearing of the towel alone clearly established the fact that accused no.1 was at his house. 19. According to the First Information Report and as per the evidence of Pritam (PW 3), a day earlier to the occurrence dispute arose between accused no.1 and the deceased and on that count neither the deceased nor the first informant went for their regular work. 20. According to the defence, it is the deceased who tried to assault on accused no.1 when he was repairing auto rickshaw. That time his son Aryan aged about 4½ years was also beside him and at that time he tried to save his life and the life of his son Aryan and in that Aryan received injuries on his head. According to the defence, it is the deceased who tried to assault on accused no.1 when he was repairing auto rickshaw. That time his son Aryan aged about 4½ years was also beside him and at that time he tried to save his life and the life of his son Aryan and in that Aryan received injuries on his head. 21. Exh.107 is a Medico-Legal Certificate pertaining to Aryan s/o Nilesh Sahu. His age is shown as 4 years. PW 3 Pritam, the first informant, established the fact that accused no.2 Rubina gave birth to a son by name Aryan from accused no.1. Aryan is the son of accused no.1 is also admitted by PW 6 Shakunbai. 22. Exh. 108 is the medical paper in respect of Aryan. The said document shows that Aryan was brought to the hospital by Police Constable Namdeo Charde, B.No.5182 of Police Station Ganeshpeth. The said document shows the history of assault and on examination incised wound over the posterior occipital region was noticed. 23. Exh.107 the Medico legal Certificate shows that Aryan was examined by Dr.S.K.Mahule at Government Medical College and Hospital Nagpur on 14th of September, 2011 at 12 p.m. It shows the injury over the left upper occipital region of size 3 x 0.5 x 0.2 cm. and injury was a fresh injury. Similarly, Exh.109 is the short case record of patient Aryan that shows that it was emergency type. 24. Investigating Officer (PW 14) though denied that accused no.2 Rubina came to the Police Station with her injured son Aryan, has admitted that he himself has filed documents (Exh.106 to 109) along with the Chargesheet in respect of the injury received by Aryan. 25. Exh.108 shows that Aryan was brought to the Government Medical College and Hospital by Police Constable Namdeo Charde. Police Constable Namdeo Charde was called by the Court as Court witness along with a Assistant Sub-Inspector, Police Station Ganeshpeth Shri Kamalakar Diwate. They were examined as Court Witness No.2 and 1, respectively. Evidence of Kamalakar reads as under : “ On 14th of September, 2011 I was working as a Head Constable. On that day I was on patrolling duty in the area of Police Station Ganeshpeth. While I was on patrolling duty, Day Officer PSI Kale made a telephone call to me in between 11.30 a.m. to 12 noon and called me to the Police Station. On that day I was on patrolling duty in the area of Police Station Ganeshpeth. While I was on patrolling duty, Day Officer PSI Kale made a telephone call to me in between 11.30 a.m. to 12 noon and called me to the Police Station. One boy along his mother were present in the Police Station. PSI Kale asked me to take the boy to Medical College and Hospital for his medical examination and treatment. The said boy received injury” From the aforesaid, it is crystal clear that PSI Kale who himself made a call to Exception this Court witness has tried to suppress the genesis by denying the presence of Rubina, the accused no.2, with her son Aryan in the Police Station. Namdeo Charde, the Court witness no.2 also established that he and Court witness no.1 Kamalakar carried a boy and a lady to the Medical College and Hospital for examination and treatment of the boy. Cross-examination of Court Witness No.1 Kamalakar shows that the mother of the boy told him that a person by name Pappa had come to his house. He has further admitted that offence was not registered against Pappa who had come to the house of patient an therefore he has not mentioned Crime No. in requisition letter (Exh.106). 26. All the eye witnesses state in their evidence about the presence of other two accused. Shakunbai (PW 6) who was present right from beginning, claims that she had not seen injury on the head of Aryan. The evidence of the eye witnesses though conclusively proved the incident of assault by accused no.1 on Manish, however, at the same time these witnesses are suppressing the genesis of the incident. 27. As observed above, since on the earlier day to the occurrence there was a dispute between the deceased and accused no.1, there was no reason for the deceased to go near to the house of accused no.1. In our view, that coupled with the fact that Aryan has received the injuries on his head and probabalized the defence of the accused no.1. 28. As observed in the K.M.Nanwati's case (cited supra) in India words and gestures may also, under certain circumstances cause grave and sudden provocation to an accused. In the present case it is quite possible that after noticing the attack on his toddler accused no.1 must have lost his self-control. 29. 28. As observed in the K.M.Nanwati's case (cited supra) in India words and gestures may also, under certain circumstances cause grave and sudden provocation to an accused. In the present case it is quite possible that after noticing the attack on his toddler accused no.1 must have lost his self-control. 29. Something which is done suddenly and in the heat of passion caused by provocation is done impulsively and at a time when there is a temporary suspension of reason and an act so done is not controlled or planned or perceived or deliberated. The impact of provocation on human frailty is to be judge in the context of the social position and environments of the person concerned. The restraint which is generally shown by sophisticated persons used to modern living is hardly to be expected in the case of a rustic person is the principle of law enunciated by catena of decisions. 30. In the present case accused no.1 is a auto rickshaw driver. His arrest memo Exh.78 shows that he has taken education up to 5th Std. By the said, one can safely reach to the conclusion that he is not a sophisticated person. When in his presence his small child is attacked, in our view, it amounts to a grave and sudden provocation to this man to retaliate. Once a person looses his self-control in that passion, one cannot expect a measure of retaliation. Therefore, we are not impressed by the submission of the learned Additional Public Prosecutor in respect of noticing of various injuries on the deceased. In our view, normal behaviour of accused no.1 was distracted by the deceased and in our view, therefore, this is a fit case which falls under Exception (1) of Section 300. Accordingly, we answer the issue. 31. Insofar as accused no.2 an 3 are concerned, though it was the claim of the prosecution witnesses that they exhorted accused no.1, they are acquitted of the offence punishable under Section 302 read with Section 109 of the Indian Penal Code. They are convicted for the offence punishable under Section 201 of the Indian Penal Code. We see no reason to upset the said finding of guilt as recorded by the learned Judge of the Trial Court in view of the evidence of PW 4 Ravi Thakare. They are convicted for the offence punishable under Section 201 of the Indian Penal Code. We see no reason to upset the said finding of guilt as recorded by the learned Judge of the Trial Court in view of the evidence of PW 4 Ravi Thakare. Insofar as the quantum of sentence to these ladies is concerned, these two ladies were in jail for about three months. At the time of incident i.e. on 14th of September, 2011 the age of Aryan was 4½ years. That shows that even today he is minor. The submission of the learned counsel for the appellant is not controverted by the learned Additional Public Prosecutor that there is nobody in his house to look after Aryan. In that view of the matter, we are inclined to show leniency towards these two accused. The upshot of the aforesaid reappreciation of the prosecution case leads us to pass the following order. ORDER Criminal Appeal No.312 of 2014 is partly allowed. Conviction of appellant no.1 – Nilesh Rampher Shahu for an offence punishable under Section 302 of the Indian Penal Code is altered to one for an offence punishable under Section 304 Part-I of the Indian Penal Code. The appellant no.1 Nilesh Rampher Shahu is sentenced to suffer rigorous imprisonment for a period of twelve years for the said offence. The conviction of appellant no.2 – Rubina w/o Nilesh Shahu and appellant no.3 – Jamilabegum w/o Salim Khan for an offence punishable punishable under Section 201 of the Indian Penal Code is maintained. However, their sentence to suffer rigorous imprisonment for two years is reduced to the period of imprisonment which they have already undergone. Rest of the order is maintained.