CHAUHAN, J. - (1.) A flared temper, a sudden quarrel and the unfortunate death of Bharos Singh forms the background of this case. The appellant has challenged the impugned judgment dated 7. 11. 2001 passed by the Sessions Judge, Kota, whereby he has been convicted under Section 302 IPC and sentenced to life imprisonment and further imposed with a fine of Rs. 50/- and to further undergo a sentence of 10 days of rigorous imprisonment in default thereof.
(2.) THE brief facts of the case are that on 5. 12. 2000 at 1. 30 P. M. One Hazari Singh a constable informed the Police Station Dadabadi, Kota that Panchu Bheel has assaulted Bharos Singh with a knife and the injured has been taken to the M. B. S. Hospital, Kota. On the basis of this information, the SHO of the Police Station left for the said hospital. At the hospital one Chhiter Singh (P. W. 3) submitted a written report to the SHO wherein he claimed that around 1. 15 p. m. after watching a cricket match at the house of Arjun Singh, he came out of Arjun Singh's house. When he reached near the Water Tank, Panchu Bheel and Bharos Singh were cursing and fighting with each other. He intervened in the quarrel and separated Panchu Bheel. As he went further, Panchu Bheel turned around and again attacked Bharos Singh. This time Panchu Bheel was carrying a knife with which he struck Bharos Singh on the chest. Even after Bharos Singh collapsed, Panchu Bheel continued to strike him. When he rushed to rescue Bharos Singh, panchu Bheel ran away. Heera Singh, Naresh Singh and Manphool Kanwar are the other persons who have seen this incident. Bhanwar Singh, Ramchander Singh and he picked up Bharos Singh and sent him to the hospital. THE said report was sent by the SHO with Govind Ram, a Head Constable to the Police Station, Dadabadi Kota. On the basis of the said report, the Police recorded a formal FIR, FIR No. 477/2000, for offence under Section 307 IPC. However, with the death of Bharos Singh later in the day, the offence of Section 302 IPC was added and the investigation commenced. On the same day, the police arrested the appellant, Panchu Lal. Eventually, the police submitted a charge- sheet against the appellant for offence under section 302 IPC. In order to prove its case, the prosecution examined 16 witnesses and submitted 15 documents. Although the defence did not examine any witness, it did submit the statement of Chhiter Singh as a defence document. After considering both the oral and the documentary evidence, the learned Trial Court convicted and sentenced the appellant as aforementioned. Hence this appeal before us. Mr. Sudhir Jain, the learned Amicus Curiae, has argued that out of four eyewitnesses, two eyewitnesses, namely, P. W. 1 Smt. Manphool and P. W. 9 Heera Singh have turned hostile. Therefore, the prosecution has relied only upon the testimony of P. W. 3 Chhiter Singh, the complainant and the evidence of P. W. 12 Naresh Singh, who is a child witness. According to the learned counsel P. W. 3 Chhiter Singh is not a reliable witness. For, in his testimony he has given three different versions about the incident. According to the first version, the moment he came out of Arjun Singh's house, he saw both the appellant and the deceased fighting together. He separated the appellant. The appellant left, had a drink and came back. Shortly thereafter, he saw the appellant striking the deceased with a knife. According to the second version, he claimed that he had gone as far as the Water Tank, he had heard a hue and cry and then he ran back only to witness the appellant striking the deceased with a knife. According to the third version, he had gone to a cross-road where he had heard the due and cry and it is from there that he saw the incident. He has further contended that statement of Naresh Singh clearly reveals that the appellant came and sat near Bharos Singh. Bharos Singh derided him about his caste. The appellant reacted to this ridicule. Suddenly, the conversion turned into a barrage of curse words and insults. Bharos Singh slapped Panchu Lal and called him names. Bharos Singh also advanced to hit Panchu Lal. Thereupon, Panchu Lal pulled out a knife and struck Bharos Singh. According to the learned counsel, there was, in fact, a grave and sudden provocation given by the deceased to the appellant. Consequently, the appellant attacked the deceased. Thus, there was neither any premeditation nor an intention to kill. Lastly he has argued that the prosecution has produced only interested witnesses as both the eyewitnesses are related to the deceased. According to P. W. 3 Chittar Singh, Bharat Lal's shop was open at the time of the incident. Yet, the prosecution has not produced Bharat Lal, who was in his shop, as an independent witness. Therefore, according to the learned counsel, the appellant has wrongly been convicted for offence under Section 302 IPC. On the other hand the learned P. P. , Mr. R. P. Kuldeep, has argued that it is a case of direct evidence where P. W. 3 and P. W. 12 are eyewitnesses. The knife was recovered at the instance of the accused. According to the Post-Mortem Report, (Ex. 9), Bharos Singh had died because of the injuries inflicted by the accused. Therefore, he supported the impugned judgment. We have heard the learned counsels for the parties and have critically examined the record and scanned the impugned judgment. P. W. 12, Naresh Singh, tells us that Heera Lal and he were sitting with Bharos Singh. Panchu Lal, the appellant, came and sat beside them. Bharos Singh chided him by asking that "now could a person of low caste sit along with him"? According to the prosecution while Bharos Singh was a `rajput' Panchu Lal was a "low caste member" as he belonged to the tribal community of Bheels. Upon this, the appellant asked Bharos Singh whether he is really a `rajput'? Bharos Singh not only slapped the appellant but also started calling him names. The tempers flared up and at the spur of the moment Panchu Lal pulled out a knife and struck Bharos Singh and ran away. Even if we were to believe the statement of P. W. 3, Chhiter Singh, it is obvious that both the deceased and the appellant started of with a verbal quarrel. The appellant was separated from the deceased. However, the effect of grave and sudden provocation given by the deceased had not worn off. The appellant pulled out a knife and assaulted the deceased. Since P. W. 3 has given three different versions of the incident, we are inclined to believe the testimony of Naresh Singh as a more reliable narration of the events. Clearly the appellant had not gone to the place where Naresh Singh was sitting with Bharos Singh with an intention to cause the death of Bharos Singh. It is only because of a grave and sudden provocation, given by Bharos Singh, that the appellant reacted. Therefore, the case of the appellant falls within the first exception of Section 300 IPC.
(3.) FOR these reasons, we partly allow the appeal of appellant and instead of Section 302 IPC we convict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 1,000/- in default to further suffer six months rigorous imprisonment. The impugned judgment of learned trial Judge stands modified as indicated above. _ .;