JUDGMENT

C.B. Agarwala, J. - Gurdayal appeals against his conviction under Sections 302 and 324, I.P.C. and sentence of transportation for life u/s 302 and of two years' rigorous imprisonment u/s 324, I.P.C.

2. The prosecution case, briefly, was that at about 2 p.m. on the 7th of February, 1951, four boys, namely, Pahunchi Lal deceased, Soney Lal, Tej Ram P.W. and Puttu Lal P.W. were grazing cattle in a banjar land outside village Patkaha in the district of Etawab. Soney Lal P.W. rested himself on the ground after asking Pahunchi Lal to look after his cattle. Tej Ram P.W. and Pahunchi Lal deceased were sitting together near a nula when Gurdayal Appellant arrived with a hatchet Ex. 3 in one hand and a khurpa in the other. Pahunchi Lal deceased asked the Appellant as to where the latter lived. The Appellant did not reply. Pahunchi Lal put the question once again and yet there was no reply. Then Pahunchi Lal said to the Appellant "Hai to poora Chamar" (After all he is a perfect Chamar). On hearing this the Appellant got enraged and struck Pahunchi Lal in the neck with the hatchet which he had in his hand. Panhunchi Lal raised an alaram. Tej Ram also shouted. The hatchet blows, however, were so powerful and were inflicted on such vital parts of the body that Pahunchi Lal died instantaneously. Soney Lal who was lying with his eyes closed at a distance of a few paces rushed to the spot when it was too late. The accused attacked him also and caused two injuries. Soney Lal raised an alarm which attracted Puttu Lal, Moti Lal and Godhan P.W. on seeing these persons, the accused ran away with the hatchet and hid himself in a bush at some distance.

3. The first information report of the incident was lodged immediately at the police station Bela. The station officer sent Soney Lal to the dispensary and deputed a constable for the arrest of the Appellant. The constable arrested the accused from the place where he was in hidding with his hatchet which was blood-stained and with some hair sticking to it. The accused was also wearing a dhoti which was blood stained and it was taken into custody by the prosecuting sub-inspector.

4. The post-mortem report revealed that the deceased Pahunchi Lal had received three incised wounds: Two on the neck cutting the cervical vertebrae, spinal cord, thyroid cartilage, oesophagus and large vessels of the neck. And the third on the upper and inner part of the right knee. In the opinion of the doctor death was due to the shock and haemorrhage caused by the cutting of the aforesaid parts of the body by some heavy sharp edged weapon like an axe.

5. Soney Lal was also examined and it was found that he had two cut wounds on the back of head.

6. In defence the accused denied that he attacked Pahunchi Lal or Soney Lal. He further denied that the hatchet was recovered from him. He also denied that the dhoti was recovered from his person. He suggested that there was a quarrel between the deceased Pahunchi Lal and Soney Lal and that the injuries on their persons were due to this quarrel.

7. In support of the prosecution case, Soney Lal P.W. 1, Puttu Lal P.W. 2 and Tej Ram P.W. 3 were produced. They were eye-witnesses of the murder; they fully supported the prosecution case. Godhan P.W. 4, who reached the spot immediately after the occurrence, saw the accused running away from the place of occurrence.

8. In defence no evidence was led. A plea on behalf of the Appellant was taken before the learned Sessions Judge to the effect and if it be assumed that it was the Appellant who inflicted injuries on the deceased, he did so because of a sudden and grave provocation which was offered by the deceased and it was urged that his case fell with in exception to Section 300. The question whether a certain provocation is sudden and grave within the meaning of Exception 1 to Section 300 is a question of fact. Exception 1 provides: "Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and su