JUDGMENT : UMESH KUMAR, J. 1. These two criminal appeals have been filed against the judgment and order dated 04.10.2004 passed by Addl. Sessions Judge, FTC (Court No. 1), Kannauj convicting and sentencing the appellant-Ramesh Chander under Section 302, IPC to undergo life imprisonment with a fine of Rs. 10,000/- and in default thereof, to undergo six months simple imprisonment. 2. The appellant-Rakesh Chandra has been convicted under section 323, IPC and sentenced to undergo one year rigorous imprisonment. 3. The prosecution story, in brief, is that the informant-Narendra Singh (PW-1) moved written report (Ex. Ka-1) at police station, Chibra Mau, district Kannauj alleging therein that accused-Rakesh Chandra (brother-in-law of Rekha Devi) wife of his brother (Dinesh Chandra Yadav) who is missing for last two months, the accused Rakesh Chandra always asked for giving share in agricultural plot to his sister-in-law (saali) and as his father is alive and the entire land is in his name, due to that Rakesh Chandra, Ramesh Chander and his father Lal Sahai became inimical to them; on 14.01.2001 at about 1.00 p.m. accused Rakesh Chandra, Ramesh Chander and Lal Sahai came to his house to discuss the above issue, they started abusing and Rakesh Chandra attacked with lathi on him on the exhortation of Lal Sahai, accused Ramesh Chander fired on Yogendra from country made pistol with intention to kill him, which hit him in the right chest (kokh); his brother fell down and in the way to police station, succumbed to injuries. The event has been witnessed by Dhani Ram, Ashok Chandra, Yaduvir and other persons of locality. As per said written report, check F.I.R. was registered at the police station and G.D. entry No. 17 at 2.30 p.m. on the said date (Ex. Ka-11 and 12) which has been proved by Indrapal Singh (PW-7). Thereafter, inquest (Ex. Ka-2) of the deceased-Yogendra was conducted by S.I. J.N. Dwivedi (PW-3). He prepared relevant police papers i.e. Challannash, photonash, letters to C.M.O. and R.I. (Ex. Ka-3, 4 and 5). The post mortem of the deceased conducted by Dr. Saket Mohan Singh (PW-4). Ka-11 and 12) which has been proved by Indrapal Singh (PW-7). Thereafter, inquest (Ex. Ka-2) of the deceased-Yogendra was conducted by S.I. J.N. Dwivedi (PW-3). He prepared relevant police papers i.e. Challannash, photonash, letters to C.M.O. and R.I. (Ex. Ka-3, 4 and 5). The post mortem of the deceased conducted by Dr. Saket Mohan Singh (PW-4). During post mortem, following injuries were found on the body of deceased: ^^¼1½ xksyh ?kqlus dk ?kko 3-5 lseh xq.kk 3 lseh lhus dh xqgk rd xgjk Nkrh ds nkfguh vksj nk;s fuiy ds 18 lseh uhps 7 ^^vks^^ Dykd dh fLFkfr esa gSA fdukjs dVs QVs FksA bdkbZ eksLV gSA blds vklikl NjsZ yxus ds ?kko gS tks fd 9 xq.kk 6 lseh {ks= esa fNrjk;s gq;s gSA ?kko dks dkVus ij 7] 8] 9 ilfy;ka VwVh ik;h x;hA nk;ka QsQMk] MkbQkeZ o yhoj dVs QVs ik;s x;sA psLV o ,dMkey dSfoVh [kwu ls Hkjh gq;h gSA tgka ij ,d fVdyh o 12 NksVs NjsZ nk;h QsQMs dh xqgk esa feysA 8 NksVs NjsZ ;d`r ls feysA ckg; ijh{k.k & e`rd vkSlr dn dkBh dk O;fDr FkkA vka[ks o eqag FkksMk [kqyk FkkA 'kjhj esa txg&txg [kwu yxk FkkA vdM+u Åijh fgLls esa FkksM+h o fupys fgLls esa ekStwn FkhA isV FkksM+k Qwyk gqvk FkkA vkarfjd ijh{k.k & mnj f>Yyh dVh QVh gq;h gSA isV esa xqgk esa [kwu Hkjk gSA vek'k; esa 70 xzke ysbZ ekStwn gSA fiRr dh FkSyh dVh QVh gSA ew=ky; esa 20 ,eŒ,yŒ ew= ekStwn gSA jk; & e`R;q dk dkj.k vkXus;kL= ls vk;s ?kko ds lnes o [kwu fudyus ls gq;h gSA e`rd dh e`R;q gq;s djhc 1 fnu gks pqdk gSA** 3....(a) Injured-Narendra Singh has been examined by Dr. K.N. Gupta (PW-5). During medical examination, he found following injuries on the body of injured-Narendra Singh: "No external mark of injuries visible. Complain of pain in the right thumb-lower part of right side back, right side head." 4. During course of investigation, the I.O. prepared site plan (Ex. Ka-8), recovery memo of blood stained and plain earth (Ex. Ka-9) and after completion of investigation, charge sheet (Ex. Ka-10) has been submitted. 5. Charges against accused were framed under Section 323/34 and Section 302/34, IPC. The accused pleaded not guilty and claimed trial. 6. The prosecution, in support of its case examined as many as 7 witnesses. (PW-1) Narendra Singh-injured, (PW-2) Ashok are said to be eye-witnesses. Ka-9) and after completion of investigation, charge sheet (Ex. Ka-10) has been submitted. 5. Charges against accused were framed under Section 323/34 and Section 302/34, IPC. The accused pleaded not guilty and claimed trial. 6. The prosecution, in support of its case examined as many as 7 witnesses. (PW-1) Narendra Singh-injured, (PW-2) Ashok are said to be eye-witnesses. (PW-3) J.N. Trivedi conducted inquest of deceased. (PW-4) Dr. Saket Mohan Singh conducted post mortem. (PW-5) Dr. K.N. Gupta prepared injury report of injured-Narendra Singh. (PW-6) Ram Prakash Singh is the Investigating officer of the case and PW-7 Indrapal Singh is Head constable. 7. Statement of accused under Section 313, Cr.P.C. was recorded. They denied the prosecution story and said that they had been falsely implicated. Accused-Rakesh Chandra has further stated that his brother-in-law (Dinesh Chandra) is missing from Delhi since last two years. 8. In defence, (DW-1) Bhanwar Singh and (DW-2) Bhagwati have been examined. 9. We have heard Sri Kamal Krishna, learned Senior Advocate assisted by Sri Ghan Shaym, learned counsel for appellant-Ramesh Chander and Sri A.N. Mulla, learned AGA for State. 10. Sri Arvind Kumar Srivastava, learned Amicus on behalf of appellant-Rakesh Chandra and Sri A.N. Mulla, learned AGA for State have been heard. 11. The argument of learned Counsel for the appellant-Ramesh Chander is that this event has taken place in sudden provocation during panchayat and thus, it is a case under Section 304-Part-I, IPC and conviction under Section 302 is bad in law. 12. Learned Counsel for appellant-Rakesh argued that the observation of learned Trial Judge that in this event, one person has been murdered, hence denial of benefit of The Probation of First Offenders Act, is perverse. He argued that appellant-Rakesh Chandra should be given benefit under the provisions of Probation of Offenders Act. 13. Learned AGA on the other hand, opposed the submission made on behalf of appellants and supported the judgment and order impugned in these appeals. 14. We are firstly dealing with the conviction and sentence awarded to appellant-Rakesh Chandra under Section 323, IPC to undergo one year Rigorous imprisonment, as he has not been found guilty for the offence under Section 302, IPC. Learned Counsel for appellant-Rakesh Chandra argued that the appellant is entitled for the benefit of probation of first offenders Act. 14. We are firstly dealing with the conviction and sentence awarded to appellant-Rakesh Chandra under Section 323, IPC to undergo one year Rigorous imprisonment, as he has not been found guilty for the offence under Section 302, IPC. Learned Counsel for appellant-Rakesh Chandra argued that the appellant is entitled for the benefit of probation of first offenders Act. For convenience, relevant extract of sections 3 and 4 of the Probation of Offenders Act, 1958 are quoted herein-below: Section 3 - When any person is found guilty of having committed an offence punishable under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under Section 4, release him after the admonition. Explanation - For the purposes of this Section, previous conviction against a person shall include any previous order made against him under this Section or Section 4. Explanation - For the purposes of this Section, previous conviction against a person shall include any previous order made against him under this Section or Section 4. Section 4 - Power of court to release certain offenders on probation of good conduct:- (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct and in the meantime to keep the peace and be of good behavior: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in place over which the court exercise jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. 15. The guidelines for pardon, parole and probation have grown into a banyan tree of karuna and compassion. The appellant-Rakesh Chandra has no criminal history recorded in the charge sheet. Learned Trial Judge has not recorded any cogent reason while declining benefit of probation to the appellant-Rakesh Chandra. Learned Counsel for the appellant-Rakesh Chandra argued that where the provision of Probation of Offenders Act are applicable, the employment of Section 360 of the Code is not to be made. In cases of such application, it would be an illegality resulting in highly undesirable consequences, which the legislature, who gave birth to the Probation of Offenders Act and the Code of Criminal Procedure wanted to obviate. Yet the legislature in its own wisdom has obliged the Court under Section 361 of the Code of Criminal Procedure to apply one of the other beneficial provision; be it 360 of the Code or the Probation of Offenders Act. Yet the legislature in its own wisdom has obliged the Court under Section 361 of the Code of Criminal Procedure to apply one of the other beneficial provision; be it 360 of the Code or the Probation of Offenders Act. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind. Simultaneously, the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. After reading the judgment of learned Trial Judge, we find that before concluding a discussion on the point why benefit of Sections 3 and 4 of the Probation of Offenders Act or Section 360 of the Code was not given, is missing, rather, without assigning any appropriate reason, just concluded his duty. Learned Trial Judge did not even bother to discuss why it is a case in which the aforesaid benefit could not be extended to the appellant-Rakesh Chandra. 16. In the present case, appellant-Rakesh Chandra is said to have caused injury to Narendra Singh by lathi. A perusal of his injury report, it transpires that the doctor has found any external injury on the body of injured, except complain of pain to the injured. In cross-examination, the doctor stated that the injuries which would normally caused by lathi blow may be contusion or swelling in nature of blow can be ascertained from the injuries received. Moreover, the doctor also expressed opinion that it is possible that even there may not be pain and he wrongly stated the said pain. In this situation, denial of extending benefit of probation to the appellant-Rakesh Chandra, without assigning any cogent reason by the learned Trial Judge, does not inspire confidence to us. We are of opinion, keeping into consideration the entire material available on record, that the appellant-Rakesh Chandra is entitled for his release on probation. 17. Narendra Singh (PW-1) supported the prosecution case and stated that the occurrence took place on 14.01.2001 at about 1.00 p.m. the accused Rakesh Chandra, Ramesh Chander and Lal Sahai came there. Rakesh Chandra armed with lathi, Ramesh Chander with country made pistol started abusing and claimed share of Rekha Devi in land. 17. Narendra Singh (PW-1) supported the prosecution case and stated that the occurrence took place on 14.01.2001 at about 1.00 p.m. the accused Rakesh Chandra, Ramesh Chander and Lal Sahai came there. Rakesh Chandra armed with lathi, Ramesh Chander with country made pistol started abusing and claimed share of Rekha Devi in land. Accused-Rakesh gave a lathi blow on his head and on the exhortation of Lal Sahai, accused-Ramesh Chandra fire on his father Yogendra from a country made pistol which hits in the right chest. After receiving injuries, his brother fell down. He exhibited tahrir (Ex. Ka-1). In cross-examination, he admitted that on the date of incident, a panchayat held on his door which started at about 8.00 a.m. and took about 3-4 hours. He himself stated that Ashok, Yaduvir and many other persons were present there. From scrutiny of length examination, participation of the accused persons in the commission of offence appears to be not reliable. In the statement, he admitted that he told the Investigating Officer about Panchayat and if he has not recorded in his statement, he cannot assign any reason thereof. Subsequently, he stated that Panchayat started at 11.30 a.m. His brother-Dinesh Chandra was working in Sanjeev Gas Agency at Delhi, from where, he was missing. He did not publish any missing news, but persons working with Dinesh Chandra got published news of his missing. He stated that he does not know that his brother was missing since 21.9.1999 or not. He admitted to have been informed just two months prior to the incident. He further stated that after missing of Dinesh Chandra, about 10-12 days, his father-in-law came to village and thereafter, they several time came and claimed share of Rekha Devi in the agricultural land. He stated that on the fateful day, a panchayat was called for the said purpose. He admitted that during panchayat, they were hurling abusive and filthy language. 18. From a close scrutiny of the statement of Narendra Singh (PW-1), it transpires that during hot exchange of abusive language on the spot, the occurrence took place. 19. Ashok (PW-2), an eye witness stated that he knew the accused persons prior to the occurrence. At about 1.00 p.m. he reached at the door of Narendra after hearing noise and exchange of filthy language. 19. Ashok (PW-2), an eye witness stated that he knew the accused persons prior to the occurrence. At about 1.00 p.m. he reached at the door of Narendra after hearing noise and exchange of filthy language. Accused-Ramesh Chander, Rakesh Chandra and Lal Sahai were abusing and in the meantime, all of sudden, firing was made. He stated that Dinesh Chandra, working in a Gas Agency at Delhi was missing since 1999 and could not be traced after all efforts. He stated in cross-examination that he reached on the spot after hearing noise where a panchayat was going on regarding missing of aforesaid Dinesh Chandra and around 30-32 persons were present there. He stated that he saw entire event from 10 steps ahead from the place of occurrence. He stated that when father and brother of Rekha Devi came to know that she is in financial trouble, they called panchayat. This panchayat was conducted at the door of Narendra Singh. He reached at the residence of Narendra after hearing noise and he cannot say that this event took place either during panchayat or thereafter. The witness also gave a picture that this event took place during or after panchayat and hot talk and filthy language were exchanged between the persons. It shows that this event took place on grave and sudden provocation during hot exchange of abusive words and altercation between the parties. 20. Exception - 1 of Section 300, IPC states that a culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes death of the person who gave the provocation or cause the death of any other person by mistake or accident. In order to bring the case within Exception-1, the following conditions must be complied with: (i) The deceased must have given provocation to the accused. (ii) The provocation must be grave. (iii) The provocation must be sudden. (iv) The offender, by reason of the said provocation shall have been deprived of his power of self-control. (v) He should have killed the deceased during the continuance of deprivation of the power of self-control. (vi) The offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident. 21. (v) He should have killed the deceased during the continuance of deprivation of the power of self-control. (vi) The offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident. 21. In other words, before Exception-1, can be invoked, the accused must establish the following circumstances: (i) there was a provocation which was both grave and sudden. (ii) such provocation had deprived the accused of his power of self-control. (iii) whilst the accused was so deprived of his power of self-control, he had caused the death of the victim. 22. In the present case, ocular evidence of eye-witnesses shows that during panchayat, at the door of deceased in regard to the share of Rekha Devi after missing of her husband, hot exchanges of abusive language between the parties, occurrence took place all of sudden and thus, it can be safely said that the event presumably took place partly under the influence of apprehension and partly under the influence of grave and sudden provocation caused due to filthy and abusive hot exchange of words and therefore, the conviction, in the fact and circumstances of the case in hand, must have been recorded of culpable homicide not amounting to murder. 23. Learned counsel for the appellant lastly, argued that keeping in view the overall assessment of the evidence and the facts and circumstances of the case, the case in hand falls under section 304 Part-I, of IPC and in support of his submission, learned counsel for the appellant has placed reliance on the decision given by the Apex Court in the case of Rampal Singh vs. State of Uttar Pradesh, (2012) 8 SCC 289 : 2012 AIR SCW 4211. 24. Classification of an offence into either part of Section 304 of IPC is primarily a matter of fact. This would have to be decided with reference to the nature of the offence, intention of the offender, weapon used, the place and nature of the injuries, existence of premeditated mind, the persons participating in the commission of the crime and to some extent the motive for commission of the crime. The evidence led by the parties with reference to all the circumstances greatly helps the court in coming to the final conclusion as to under which penal provision of IPC, the accused is liable to be punished. 25. The evidence led by the parties with reference to all the circumstances greatly helps the court in coming to the final conclusion as to under which penal provision of IPC, the accused is liable to be punished. 25. Considering several decisions, in State of A.P. vs. Rayavarapu Punnayya, (1976) 4 SCC 382 : AIR 1977 SC 45 , the Apex Court while clarifying the distinction, held as under: "12. In the scheme of the Penal Code, culpable homicide is genus versa murder its species. All murder is culpable homicide but of vice versa. Speaking general....culpable homicide not amounting to murder. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, culpable homicide, which is defined in Section 300 as murder. The second may termed as culpable homicide of the second degree. This is punishable under the first 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 punishment provided for the three grade. Culpable homicide of this degree is punishable under the second part of Section 304." 26. Section 300 of IPC proceeds with reference to Section 299 of IPC. "Culpable homicide" may or may not amount to "murder" in terms of Section 300 of IPC. When a "culpable homicide is murder, the punitive consequences shall follow in terms of Section 302 of IPC while in other cases, that is, where an offence is "culpable homicide not amounting to murder" punishment would be dealt with under Section 304 of IPC. 27. It would not be necessary for us to deal with the case, in this respect in any further detail. Of course, the principles that have been stated in various judgments of the Apex Court are the broad guidelines and not cast-iron imperatives. The cases are providing precepts for the courts to exercise their judicial discretion while considering the cases to determine as to which particular clause of Section 300 of the Code they fall in. 28. From close scrutiny of the evidence, case of sudden provocation is established, in the present case. Homicidal death caused by appellant-Ramesh Chander is, apparently established, which do not amount to murder. 29. 28. From close scrutiny of the evidence, case of sudden provocation is established, in the present case. Homicidal death caused by appellant-Ramesh Chander is, apparently established, which do not amount to murder. 29. Thus, in our considered view, the offence committed by appellant-Ramesh Chander was only culpable homicide not amounting to murder. In the circumstances of the present case, we are inclined to bring down the offence from first degree murder to culpable homicide not amounting to murder. 30. Accordingly, we partly allow this appeal and hold the appellant-Ramesh Chander guilty of the offence under Section 304 Part-I of IPC and not under Section 302, IPC. We hereby award a sentence of ten years rigorous imprisonment and a fine of Rs. 10,000/- in default to undergo simple imprisonment for one month. Instead of sentencing the appellant-Rakesh Chandra, he is given benefit of Section 4 of the Probation of Offenders Act. He be released on furnishing bonds to the tune of Rs. 50,000/- coupled with the personal bond to the effect that he shall not commit any offence and shall be of good character and behavior and shall maintain peace during the period of one year. If there is breach of any of the conditions, he will subject himself to undergo sentence before the Magistrate as per Rules. The bonds indicated above, shall be filed by the appellant-Rakesh Chandra within a period of one month from today, in accordance with law. The judgment and order under challenge is modified to the above extent. 31. Since the appellant-Ramesh Chander is already on bail, his bail bond stands cancelled and he be taken into custody forthwith, to serve the remaining sentence. The appellant- Rakesh Chandra is given benefit of probation. He be released on furnishing bonds, in accordance with law. 32. This appeal is disposed of accordingly. 33. We appreciate the assistance rendered by Amicus Sri Arvind Kumar Srivastava, who argued this appeal. He shall be paid a sum of Rs. 15,000/- (Rs. Fifteen thousand only) towards his remuneration. 34. Registry to transmit the original record of trial court and the judgment for immediate compliance to the Court concerned.