G. M. LODHA, J. - (1.)THIS is an appeal by accused Jal Singh against the judgment of Sessions Judge, Alwar convicting the appellant U/s 302 I. P. C. for committing murder of Mewa W/o Ram Kishan
(2.)THIS case was listed today for the consideration of 5th bail application filed by Jal Singh. On a joint request made both by Mr. Tibrewal and Mr. Mathur that since the counsel for the accused is not intending to argue the case on merits as a whole and he is desirous of challenging only the conviction to the limited extent and is pressing for its conversion from Section 302 I. P. C. to Section 304 I. P. C, the entire appeal may be heard and decided today. Consequently, the appeal was heard on merits.
It is not necessary to mention in detail the facts of the case because Ms. Tibrewal, learned counsel for the accused submits that he is not in a position to challenge the finding that it was Jal Singh who caused the death of Mewa, but according to him although death was caused by Jal Singh by a 'farsha' yet the offence committed by him, in the facts and circumstances of the case, is culpable homicide and not amount to murder and the trial court has committed an error in convicting the accused for committing murder. In order to appreciate the submission of Mr. Tibrewal, it would be necessary to mention the facts which have been proved and which have not been challenged and which required short narration for understanding the case. Firstly it requires taking notice of the fact that both deceased and the accused were close related. The family pedegeri as given by Mr. Tibrewal and which is not disputed is that Tirkha Ram had 3 sons; Ram Kishan, Srichand and Jal Singh, whereas, deceased Mewa is the wife of Ram Kishan, Jal Singh is the accused convict. They all live separately in the same Gawari and an engine, which was used jointly by all the three brothers became the subject matter of settlement by fixing of its price at Rs. 500/ -. It was agreed that Ram Kishan would pay Rs 500/- to Jal Singh within a month, but this amount was not paid in time limit of one month On this, Ram Kishan wanted to pay the amount after the time fixed, but Jal Singh resisted it. Jal Singh then told Ram Kishan that he must get his engine repaired, which Ram Kishan get done by some mechanic known as Kudia Ram. After repair, Ram Kishan wanted that Jal Singh should accept Rs. 500/- but Jal Singh refused to do so. Jal Singh also refused to accept the request of Ram Kishan that he should get the fan of engine cleaned. Jal Singh asked Ram Kishan not to do so, but Ram Kishan went to clean the fan from the engine and on this Jal Singh rushed to his house, brought a Barchi and gave a blow to Mewa wife of Ram Kishan, who was advising Ram Kishan not to clean the fan and to perpetuate the dispute. Jal Singh wanted to gave second blow to Ram Kishan, but Smt. Moharli intervened and rescued Ram Kishan. Thereafter Ram Kishan left the place. Mewa sucummbed to the head injury caused by Barchi blow of Jal Singh and collapsed. It is not necessary now to mention the history of the investigation, filing of the challan, commitment proceedings and recording of the evidence because of the limited prayer of Mr. Tibrewal to consider the question of conversion of offence u/s 302 I. P. C. into Sec. 304 I P. C. Even then we have read the statements of the material witnesses and particularly P. W. 1 Ram Kishan, P. W. 2 Moharli and P. W. 3 Tirkha Ram. 3. From their evidence it is clear that dispute arose on account of the fact that where as Ram Kishan requested Jal Singh to take the amount even after the expiry of one month or get the amount settled, but Jal Singh was not aggreable to it. Although in the very breath he said that first the engine should be got cleaned, which was done, but later on Jal Singh refused to settlement. The crucial incident happened when Ram Kishan went towards the engine for opening or cleaning the fan and Jal Singh asked him not to do so. This is evident from the statement of P. W. 3 Tirkha Ram, who is father of accused Jal Singh, P. W. 1 Ram Kishan, who is brother of accused and Moharli P. W. 2, who is mother of accused Jal Singh. It transpires from their evidence that Jal Singh warned Ram Kishan not to open the fan from the engine. But Ram Kishan went towards the engine for opening the fan and at this accused Jal Singh brought 'farshi' and gave a blow to Mewa. After that according to the statement of P. W. 2 Moharli, Srichan gave one lathi blow to Jal Singh.

On the above proved facts, which are not disputed by Mr. Tibrewal submits that the offence of accused Jal Singh cannot travel beyond part (2) of Section 304 I. P. C.

The Public Prosecutor has opposed the request made by learned counsel for the accused.

We have given a thoughtful consideration to the above aspect of the case. It is proved that Ram Kishan and Jal Singh are brothers and Mewa is wife of Ram Kishan. It is also true that the dispute about the engine took a sudden turn when Jal Singh warned that Ram Kishan should not open the fan from the engine and Ram Kishan insisted upon opening the fan. It has come on record that Mewa even advised Ram Kishan not to open the fan otherwise it would lead to a major quarrel. It appears that Ram Kishan insisted on it and at this point of time, accused Jal Singh lost his self control and without premeditation gave a Farshi blow, which struck Mewa W/o Ram Kishan as Mewa and Ram Kishan were together.

(3.)WE may mention that exceptions (1) and (4) of Sec. 300 I. P. C. are material for the purposes of consideration of the submission of Mr. Tibrewal. Exception (1) and (4) read as under: - Exception-1. 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 provocation or causes the death of any person by mistake or accident. Exception 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.
In the instant case, on the above proved facts, which are not in dispute, we have got no hesitation in holding that Jal Singh lost the power of self control on account of grave and sudden provocation, which he got due to insistance of Ram Kishan in going for opening the fan of the engine, the act which according to Jal Singh should not have been done and for which he warned not to do so and due to which he lost the self control, he brought the Farshi and the death of Mewa was caused who happened to be with Ram Kishan at that time. Undoubtedly, the act of Jal Singh was without pre-medi-tation and it was done in the heat of passion upon a sudden quarrel, which ensued between Ram Kishan and Jal Singh. Since only one blow was given, it cannot be said that Jal Singh acted in cruel and unusual manner or took undue advantage. We, therefore, find that Jal Singh is guilty of culpable homicide not amounting to murder. The use of Farshi by accused which he brought from his house, on the vital part of the body of deceased certainly shows that accused was causing such bodily injury, which was likely to cause death. The injury was caused on the head of Mewa and therefore, we find that the offence committed by accused Jal Singh is covered by Section 304 (1) I. P. C.

The result of the above discussion is that the appeal is partially accepted. The conviction of accused Jal Singh u/s 302 I. P. C. is set aside and is converted into Section 304 (1) I. P. C. Consequently, the sentence of life imprisonment passed against Jal Singh is set aside and a sentence of 10 years rigorous imprisonment is imposed on him. The appellant would be entitled to the benefit of Section 428 Cr. P. C. for the period during which he remained in Jail either under trial, investigation or after conviction.