JUDGMENT : KANWALJIT SINGH AHLUWALIA, J. 1. Shankar Lal (P.W.1) on 15.4.1991 presented written report (Exhibit-P/5) before Head Constable Narendra Yadav (P.W.14), on the basis of which a formal FIR (Exhibit-P/6) bearing No. 18/1991 was registered at Police Station Nagar Fort, for the offences under Sections 307 and 452/34 IPC. Subsequently, due to death of Kajod son of Shankar Lal (P.W.1), offence under Section 302 IPC was added. 2. In written report (Exhibit-P/5), Shankar Lal (P.W.1) nominated Jagdish son of Madho Nai and his younger brother Satyanarayan as accused. Jagdish and Satyanarayan both were tried by the court of Sessions Judge, Tonk in Sessions Case No. 46/1991. The trial court on 26.6.1992, acquitted Satyanarayan of offences under Section 458 and 302 IPC. Jagdish was also acquitted of offence under Section 458 but he was convicted for the offence under Section 302 IPC for having caused death of Kajod son of Shankar Lal (P.W.1). The trial Judge vide a separate order of even date sentenced Jagdish as under:- U/s. 302 IPC- to undergo life imprisonment and to pay a fine of Rs. 200/-, in default of payment of fine to further undergo additional two months RI. 3. Aggrieved against his conviction and sentence, Jagdish preferred D.B. Cr. Appeal No. 244/1992. State of Rajasthan also challenged the acquittal of Satyanarayan by filing an application for leave to appeal. A Division Bench of this Court on 17.2.1993 granted leave to appeal and hence, D.B. Cr. Appeal No. 72/1993 was registered as appeal against acquittal against Satyanarayan. Both the appeals have been ordered to be heard together. 4. The written report (Exhibit-P/5) when translated into English reads as under:- "To Shri SHO Saheb, Police Station Nagar Fort, Subject: Regarding giving beating to my son Kajod and making him unconscious. Sir, In the above noted subject, it is submitted that today on 15.4.1991 in the night at about 9:00 PM, Jagdish son of Madho Nai and his younger brother Satyanarayan son of Madho Nai, residents of Devpurakalan trespassed into my house, where my son Kajod was sleeping. Jagdish on arrival caused an axe injury on the head and feet of Kajod, as a result of which, he became unconscious. Satyanarayan also caused lathi injury on the head and made him unconscious. On the shrieks raised by Kajod, I went running inside the house and caught hold of Jagdish. Jagdish on arrival caused an axe injury on the head and feet of Kajod, as a result of which, he became unconscious. Satyanarayan also caused lathi injury on the head and made him unconscious. On the shrieks raised by Kajod, I went running inside the house and caught hold of Jagdish. Before I could catch hold of him, in front of me and in presence of Dev Karan, Jagdish caused kulhari (axe) injury on the head of Kajod. Jagdish had also earlier given 3 or 4 kulhari (axe) blows on the person of Kajod. Within our sight, Satyanarayan also caused two lathi injuries on the right shoulder of Kajod. Both brothers ran away from the spot. Meanwhile, other villagers also arrived at the place of occurrence. They have witnessed the occurrence. Kajod is unconscious, hence, necessary action be taken. Applicant Shankar s/o Rama Dhakad, aged 50 years, Ratanpura, Police Station Nagar Fort Dt. 15.4.1991 LTI" 5. Dr. Yogendra Swaroop Khanna (P.W.13) on 16.4.1991 was posted as Medical Jurist at General Hospital, Tonk. On the said date at 10:30 AM, Dr. Yogendra Swaroop Khanna conducted autopsy on the dead body of Kajod and in the Post Mortem Report (Exhibit-P/30), noted following injuries:- Body is fairly built and nourished. Rigor Mortis present all over the body and body is not decomposed. 1. Lacerated wound 2cm x 1cm x bone deep, with fracture of leg bones, middle of right leg. 2. Lacerated wound 2cm x 2cm x bone deep, middle of left leg. 3. Incised wound 6cm x 3cm x bone deep, frontal region of skull. 4. Incised wound 6cm x 3cm x bone deep, left occipitoparietal region of skull, brain material comes out. 5. Incised wound 6cm x 3cm x bone deep, bregmatic region of skull, brain material comes out. 6. As per opinion of the doctor, there was presence of multiple fracture of left parietal bone and frontal bone, brain matter was coming out, meninges were injured and cranial cavity was full of blood. As per opinion of the doctor, in the present case, cause of death was Coma due to intra cranial hemorrhage caused by multiple fracture of left parietal bone, frontal bone and laceration of brain. 7. Shankar Lal in the court himself appeared as P.W.1 and reiterated as to what was stated by him in written report (Exhibit- P/5). As per opinion of the doctor, in the present case, cause of death was Coma due to intra cranial hemorrhage caused by multiple fracture of left parietal bone, frontal bone and laceration of brain. 7. Shankar Lal in the court himself appeared as P.W.1 and reiterated as to what was stated by him in written report (Exhibit- P/5). Shankar Lal in the court stated that Jagdish caused Kulhari (axe) injury on the head of Kajod. Satyanarayan had caused injury with stick on the foot of Kajod. This witness stated that besides him, the occurrence was witnessed by Dev Karan and Badri. 8. Bhoori (P.W.2) wife of Shankar Lal (P.W.1) also supported Shankar Lal (P.W.1). 9. Dev Karan (P.W.3) reiterated the same version to lend corroboration to the testimony of Shankar Lal (P.W.1). 10. Badri (P.W.4) son of Dhanna stated that he along with Dev Karan was sitting on the cot in the house of Shankar Lal, when he saw accused going into the house of Bishan. This witness stated that he is not aware as to why Jagdish and Satyanarayan were going to the house of Bishan. He saw no weapon in their hands. 11. Badri (P.W.5) son of Bajrang Lal in the court stated that in the night at about 9:30 PM, he heard noise of women coming from the house of Shankar Lal. This witness along with his brother Shambhu went running to the house of Shankar Lal (P.W.1). This witness stated that he found Jagdish armed with Kulhari (axe) and Satyanarayan armed with lathi. 12. Satyanarayan (P.W.6) stated that police in his presence prepared the site plan (Exhibit-P/7) and also photographs of spot (Exhibit-P/8) were taken. This witness witnessed the recovery of blood smeared cot vide Exhibit-P/17 and recovery of simple soil vide Exhibit-P/18 and controlled soil vide Exhibit-P/19. 13. Krishn Bihari (P.W.7) being Photographer proved photographs of the place of occurrence (Exhibit-P/8) and dead body (Exhibit-P/9 to 15). 14. Rang Lal (P.W.8) and Mathura Lal (P.W.9) are witness to the recovery of weapons from the accused, whereby axe and lathi from accused were recovered vide Exhibit-P/26 and Exhibit-P/27. 15. Suwa Lal (P.W.10) in the court stated that in the night on the date of occurrence, at 8:00/9:00 PM, he heard cries from the house of Shankar Lal (P.W.1). This witness stated that he saw Jagdish and Satyanarayan armed with weapons going away from the spot. 15. Suwa Lal (P.W.10) in the court stated that in the night on the date of occurrence, at 8:00/9:00 PM, he heard cries from the house of Shankar Lal (P.W.1). This witness stated that he saw Jagdish and Satyanarayan armed with weapons going away from the spot. This witness also deposed regarding the fact that injured was brought to the hospital where he expired. 16. Chothumal (P.W.11) also deposed about hearing shrieks coming from the house of Shankar Lal (P.W.1), thereupon, he along with Suwa Lal (P.W.10) had gone to the spot. 17. Mushtaq Baig Constable (P.W.12) had carried ten sealed packets to the Forensic Science Laboratory and deposited the same vide receipt Exhibit-P/30. 18. Dr. Yogendra Swaroop Khanna (P.W.13) as already stated performed autopsy on the dead body of Kajod. Narendra Yadav (P.W.14) as already specified, on presentation of written report, registered the case. 19. Ram Prasad Sharma (P.W.15) and Bhairu Lal (P.W.16) being posted at Police Station Nagar Fort and Ghad respectively, had conducted investigation and have proved various facets of investigation. 20. Thereafter, statement of the accused Jagdish was recorded under Section 313 Cr.P.C., 1973 All incriminating evidence was put to him. Jagdish in his statement recorded under Section 313 Cr.P.C., 1973 took a stand that he had gone to the house of Kajod, there an altercation ensued and Kajod picked up an axe (Kulhari) and wanted to give injury to him and in self defence he snatched the weapon. 21. In defence accused examined two witnesses, namely Sumita @ Santra (D.W.1) daughter and Bhanwari (D.W.2) wife respectively of principal accused Jagdish. 22. Sumita @ Santra (D.W.1) in the court stated that one year ago she had gone to Ratanpura, and the house of Shankar Lal (P.W.1) where Kajod made her fall on the ground and had raped. She returned to the house and narrated the incident to her mother, upon which mother relayed incident to Jagdish, principal accused. To similar effect is the statement made by Bhanwari (D.W.2) wife of accused Jagdish. 23. We have heard the learned counsel for the parties and perused the record. 24. Mr. Prakash Thakuria, the learned Public Prosecutor has assailed the acquittal of Satyanarayan brother of Jagdish, whereas, Mr. Nitin Jain, the learned counsel for the accused respondent defended the impugned judgment so far acquittal is concerned and has also prayed that Jagdish appellant to D.B. Cr. We have heard the learned counsel for the parties and perused the record. 24. Mr. Prakash Thakuria, the learned Public Prosecutor has assailed the acquittal of Satyanarayan brother of Jagdish, whereas, Mr. Nitin Jain, the learned counsel for the accused respondent defended the impugned judgment so far acquittal is concerned and has also prayed that Jagdish appellant to D.B. Cr. Appeal No. 244/1992 be acquitted of the offences and the judgment of trial court to this extent be set aside. 25. We are conscious that in the present case, Jagdish has admitted his presence at the spot and has taken a plea that he had gone to the house of Kajod where after an altercation took place, Kajod picked up an axe and snatched the same and acted in self defence. The motive in the present case has been proved by two defence witnesses namely Sumita @ Santra (D.W.1) and Bhanwari (D.W.2), who are none else but daughter and wife respectively of the principal accused Jagdish. Thus, in the present case, motive, presence of accused at the spot and weapon have been admitted by the convicted accused. 26. The learned counsel for the appellant has contended that daughter of Jagdish was raped and therefore, having learnt the same, accused had gone to the house of Kajod. Thus, it is urged before us that accused Jagdish had gone to the house of Kajod compelled by grave and sudden provocation. Hence, it is urged that we should invoke Exception I to Section 300 IPC. Exception I to Section 300 IPC reads as under:- "Exception-1 - When Culpable homicide is not a murder- Culpable homicide is not a murder when 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." 27. 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." 27. In the present case, by taking a very bold defence, accused has put honor and reputation of the family at stake by examining his daughter to say that she was ravished by Kajod. But from the statement of Sumita @ Santra (D.W.1) and Bhanwari (D.W.2) daughter and wife of Jagdish respectively and from the statement made by accused recorded under Section 313 Cr.P.C., 1973 no time has been specified as to when Sumita @ Santra (D.W.1) was raped. Therefore, we cannot infer whether there was sufficient cooling time for the accused. Intervening time is an important factor where grave and sudden provocation is sought to be invoked. Exception 1 to Section 300 IPC lay emphasis sudden provocation. Secondly, we find that the plea that daughter of appellant Jagdish was raped was not raised immediately after the occurrence. No complaint at the instance of accused Jagdish, Sumita @ Santra (D.W.1) or Bhanwari (D.W.2) wife of Jagdish was lodged at the police station. This plea has been taken at a highly belated stage only at the stage of defence. During the investigation, no application was filed at the instance of the accused or by the victim of rape to complain against the conduct of Kajod deceased. 28. Even though, Bheru Lal (P.W.16) Investigating Officer has admitted that he learnt on 16.4.1991 that the occurrence had taken place due to eve teasing. Therefore, we cannot rule out that defence was created at belated stage. 29. Furthermore, in the present case, appellant Jagdish had taken undue advantage and has caused three incised injuries on the head of Kajod. Therefore, we are convinced that no ground is made to alter the offence. Hence, plea raised for modification of the defence being not tenable is rejected. 30. The learned trial Judge in the impugned judgment has recorded acquittal of accused for the offence under Section 458 IPC by holding that no offence of lurking house trespass is made out. 31. Now, we shall consider the acquittal of Satyanarayan. Hence, plea raised for modification of the defence being not tenable is rejected. 30. The learned trial Judge in the impugned judgment has recorded acquittal of accused for the offence under Section 458 IPC by holding that no offence of lurking house trespass is made out. 31. Now, we shall consider the acquittal of Satyanarayan. The trial Judge has given very valid reasons to record acquittal of Satyanarayan. The trial Judge upheld the argument that Satyanarayan has been named only because he is brother of Jagdish. The trial Judge further noted that all witnesses Shankar Lal (P.W.1), Bhoori (P.W.2), Dev Karan (P.W.3) and Badri (P.W.4) have stated that Satyanarayan was armed with stick. The court further noted in the written report (Exhibit-P/5) Shankar Lal (P.W.1) specifically stated that Jagdish had caused injury on the head and foot of Kajod and Satyanarayan had caused injury on the back of shoulder. It was further noticed that Jagdish had given 3/4 axe blows on the person of Kajod and Satyanarayan had caused injury on the right shoulder meanwhile villagers came. 32. Taking the narration of facts given in the written report (Exhibit-P/5) on the basis of which formal FIR was registered, the trial Judge came to conclusion that medical evidence has not corroborated the role assigned to Satyanarayan. The court further noted that Bhoori (P.W.2) mother of Kajod and wife of Shankar Lal (P.W.1) specifically stated that Kajod was lying on the cot and similar fact is also discernible from the site plan (Exhibit-P/7). The trial court further held that injury nos. 1 and 2 on the person of Kajod can be caused from the reverse side of axe. Thus, the trial court came to the conclusion that case is made out to sift the grain from the chaff, as it cannot be ruled out that Satyanarayan is victim of false implication due to widening of the net. 33. We are conscious that we are in appeal against acquittal. The view formulated by the trial Judge to record acquittal of Satyanarayan is one view which is possible on appreciation of evidence. The view formulated by the trial Judge cannot be termed perverse. Therefore, guided by the parameters laid by the Supreme Court to appreciate evidence in appeal against acquittal, we are of firm view that no ground is made to cause interference in the appeal against acquittal. The view formulated by the trial Judge cannot be termed perverse. Therefore, guided by the parameters laid by the Supreme Court to appreciate evidence in appeal against acquittal, we are of firm view that no ground is made to cause interference in the appeal against acquittal. Hence, we affirm the finding of acquittal recorded by the trial Judge. 34. As a result of above discussion, D.B. Cr. Appeal No. 244/1992 is dismissed. The conviction and sentence of Jagdish appellant to D.B. Cr. Appeal No. 244/1992 recorded by the trial Judge is affirmed. The trial court shall issue arrest of warrant as necessary follow up, because of dismissal of appeal preferred by Jagdish. Copy of the judgment and the record be sent to the trial court. Similarly, D.B. Cr. Appeal No. 72/1993 preferred by State of Rajasthan questioning the acquittal of Satyanarayan is also dismissed causing no interference.