JUDGMENT : 1. By this appeal, a challenge is made to the order dated 5th July, 2013, passed by the Additional Sessions Judge No. 1, Kishangarhbas, Alwar in Session Case No. 14/10(20/11) (26/11). The accused-appellant was convicted for offence under Section 302 IPC and sentenced to life imprisonment with fine of Rs. 50,000/- in case of default to pay fine, to further undergo one year rigorous imprisonment. The trial court directed to pay a sum of Rs. 40,000/- as compensation out of the amount of fine. 2. Learned counsel for appellant submits that incidence took place under sudden provocation and on the spur of moment, thus a case for offence under Section 302 IPC was not made out. It is more so when weapon used in the occurrence is such which remains readily available in the villages. 3. Referring to the facts of this case, it is stated that accused-Jaisingh was trimming the tree. The deceased-Prithvi Singh came and asked him not to do it. On hearing the aforesaid, the accused gave two blows to the deceased by an axe. The injuries out of which were on the head and neck. The accused ran away from the scene of occurrence immediately when complainant-Matu Singh came on the spot. Thereafter, Laman Singh and Parkash also reached there. They had also seen the occurrence. The deceased ultimately succumbed to injuries and it was on the spot. 4. The incidence was reported to police and, accordingly, an FIR No. 99/08 was registered for offence under Section 302 IPC. After investigation, a charge sheet was filed against the accused. The trial court, thereupon, framed charge for offence under Section 302 IPC and explained it to the accused. He denied the charge, thus trial commenced. 5. In trial, the prosecution produced thirteen witnesses and seventeen documents to support its case. In defence, four documents were produced by the accused. His statement was recorded under Section 313 Cr.P.C. The prosecution could prove its case not only by producing eye-witnesses to the occurrence but recovery of the weapon and other evidence. 6. Learned counsel for appellant has not disputed the incidence but it is said to be under sudden provocation and took place on the spur of moment. It was when accused was trimming the tree and the deceased asked him not to do it, rather, orally forbid him to do so. 6. Learned counsel for appellant has not disputed the incidence but it is said to be under sudden provocation and took place on the spur of moment. It was when accused was trimming the tree and the deceased asked him not to do it, rather, orally forbid him to do so. At that stage and seems to be under anger, the accused used an axe for causing two blows to the deceased. In view of the above, prayer of learned counsel for appellant is to bring the present case under Section 304 Part-I IPC instead of Section 302 IPC. 7. Learned counsel for appellant has made reference of Sections 300 and 304 Part-I IPC to support his argument. Referring to the evidence of PW-1 Amar Singh, PW-3 Maman Singh, PW-4 Hajari Singh, PW-5 Prakash, PW-7 Ranbeer Singh, PW-9 Kishore and PW-13 Prashant Sharma, it is stated that none of them were eye-witnesses but the trial court has relied on their statements and for that, even of PW-6 Matu Singh. 8. We find that evidence led by the prosecution was sufficient to prove the incidence. Whether this case falls under Section 302 IPC or under one of the exceptions given under Section 300 IPC is required to be examined. Accordingly, we are considering evidence produced by the prosecution for the aforesaid. The evidence led by the prosecution does not show that occurrence took place with pre-meditation of the accused. It is also a fact that weapon used in the occurrence generally remains available in the villages. The weapon was used under sudden provocation when the deceased asked the accused to stop trimming of the tree. The axe was, otherwise, available with the accused because he was trimming the tree, thus used in the occurrence. 9. The perusal of post-mortem report, Exhibit-P13, shows that deceased sustained two injuries and out of it, one was on the vital part. The cause of death is out of coma due to injuries sustained by the deceased. If facts of the case are taken into consideration in reference to statements of witnesses, it becomes clear that incidence took place under sudden provocation and not with premeditation. It was on the spur of moment, thus cannot be said to be a case of culpable homicide amounting to murder, rather, falls in one of the exceptions given under Section 300 IPC. 10. It was on the spur of moment, thus cannot be said to be a case of culpable homicide amounting to murder, rather, falls in one of the exceptions given under Section 300 IPC. 10. In view of the above, we cause interference in the order of conviction for offence under Section 302 IPC, rather, it is brought under Section 304 Part-I IPC and, as a consequence of which, we cause interference in the sentence also. The sentence of life imprisonment is substituted to 10 years rigorous imprisonment for the offence under Section 304 Part-I IPC. It is with fine of Rs. 50,000/- out of which, Rs. 40,000/- would be paid to deceased’s wife, as directed by the trial court. In case of default to pay fine, to further undergo six months simple imprisonment. 11. With the aforesaid substitution in the order of conviction and sentence, this appeal is partly allowed.