JUDGMENT : Narasimham, C.J. - This is an appeal from the judgment of the Sessions Judge of Cuttack, convicting the Appellant u/s 302 I.P.C. and sentencing him to transportation for life, for having murdered a co villager of his named, Timma, alias Madhusudan Singh in his village Panchakahania. 2. The deceased was a young Rajput, aged about 25 years, of that village and was in affluent circumstances. The Appellant who is an aboriginal aged 30 years was formerly working as a servant of the deceased but had left his service some years ago. The Appellant's wife Jema Dei (P.W. 9) a young woman aged about 23 years-had also formerly worked as a maid-servant in the house of the deceased. 3. Early in the morning of the 6th July 1958, the villagers of Panchakahania were rudely awakened on hearing an alarm raised about the murder of the deceased. The latter lay dead in a pool of blood in a court-yard adjacent to the house of the Appellant. The Appellant surrendered himself to his cousin Gonda Dehury (P.W. 5) with a blood-stained Katari in his hand saying that he had killed Timma (deceased) as he entered his house. He also threatened to kill his wife (P.W. 9) but Gonda (P.W. 5) and (P.W. 4) Narayan overpowered him and snatched the Katari from his hand. 4. The crime was reported at Dhenkanal P.S. 12 miles away at 6.45 A.M. and the investigation was taken up by the Section J. of Police Sri Sarat Chandra Das (P.W. 20). After the usual inquest the corpse of Timma was sent to the Assistant Surgeon of Dhenkanal Hospital (P.W. 12) for post mortem examination. He found that the left leg was almost completely severed from the body by a sharp cutting instrument, that there was an incised wound on the calf muscle of the right leg and also another incised wound in the right iliac region in consequence of which the right intestines came out. The peritoneum, the stomach and the small intestines had also incised injuries. Death was due to shock and hemorrhage, resulting from the aforesaid injuries especially the injury in the right iliac region which was sufficient by itself to cause death. That injury was caused by a sharp cutting instrument like a Katari. The peritoneum, the stomach and the small intestines had also incised injuries. Death was due to shock and hemorrhage, resulting from the aforesaid injuries especially the injury in the right iliac region which was sufficient by itself to cause death. That injury was caused by a sharp cutting instrument like a Katari. The medical evidence thus leaves no room for doubt that the assailant of the deceased attached him in a frenzy of hatred, with the intention of killing him. 5. The Appellant has throughout admitted that he killed the deceased. The main question for consideration in this appeal is whether the circumstances under which the deceased was murdered would reduce the offence to one u/s 304 I.P.C. 6. The Appellant made a confessional statement before a Magistrate on the 8th July 1958. In that confession he stated several days before the present occurrence some unknown person came to the verandah of his house while he was sleeping there in the night and that on noticing his presence the Appellant thrust a stick at him and that the man ran away. But the Appellant began to suspect his wife and immediately charged her with taking to bad habits. Since that day he remained on the alert and slept on a cot on the passage leading to his bed-room. On another night his cow which had been tethered to a post suddenly got frightened and got entangled in the rope, apparently on seeing a stranger and he had to cut the rope with a Kathi and rescue the cow. This incident also confirmed his suspicion that some unknown person had suddenly came to his house and thereby frightened the cow. From that day onwards he kept a Katari by his side whenever he slept in the, night. His wife Jema Dei used to sleep in the middle room while his widowed sister (P.W. 8) Pitai and her children used to sleep in another room. During the night of the occurrence the culprit again came to the house, quietly untied the tatti door and succeeded in entering the bedroom of his wife. The Appellant woke up, but instead of immediately attacking the intruder he waited for an hour or o to see whether his wife would raise any alarm. But she did not raise any sound. The Appellant woke up, but instead of immediately attacking the intruder he waited for an hour or o to see whether his wife would raise any alarm. But she did not raise any sound. Thereafter he got up and the intruder also came out and attempted to run away, but the Appellant gave him severe blows with his Katari, the last blow being given when the deceased was about to climb the fence of the cowshed with a view to get into the neighbour's house. The intruder then fell down in the courtyard on the other side of the fence crying in pain. Subsequently the Appellant came to know that the intruder was none else than Timma. The Appellant further stated in his confession that Timma was misbehaving with his wife. When examined before the Committing Magistrate the Appellant changed this version and stated that he mistook him to be a thief as soon as he heard the sound of the tatti door being opened an attacked him with a Katari. In the Court of Sessions he went back to his original version. He admitted the two previous incidents and stated that during the night of occurrence the intruder entered the house and went into his wife's bedroom that she shouted 'Chor Chor' and then he looked in and found the intruder lying on his wife, He admitted that there was an interval of one hour during which he kept quiet and then he attacked him when he was running away. 7. The most important witness in the case is P.W. 9 Jema Dei the wife of the Appellant. Like her husband, she also gave varying versions of the occurrence on different occasions. Thus, in her statement u/s 164 Code of Criminal Procedure while admitting that she had also intercourse with him on two occasions she stated further that Timma entered her bedroom that night. But she did not clearly state the circumstances under which Timma was assaulted by her husband. In her statement before the Committing Magistrate she denied having had sexual intercourse with the deceased, pretended complete ignorance of the entire incident on the night of the 5th/6th July 1958 and said that she woke up early in the morning on hearing some noise and learnt about the murder of Timma by her husband. In her statement before the Committing Magistrate she denied having had sexual intercourse with the deceased, pretended complete ignorance of the entire incident on the night of the 5th/6th July 1958 and said that she woke up early in the morning on hearing some noise and learnt about the murder of Timma by her husband. In the Court of Session also she has given two distinct versions at two stages. Her earlier version given in chief examination and also in cross-examination was that Timma entered her bedroom and forcibly had sexual intercourse with her. Thereupon she called out to her husband saying that Timma was misbehaving, and then Timma left and she closed the door from inside. Apparently her suggestion is that Timma must have been attached by her husband while he was leaving the house. But when, after cross examination she was Subsequently questioned by the Court she changed that version and stated that as soon as Timma entered the house and caused some noise her husband woke up shouted and attacked the intruder. She denied that Timma entered into her bedroom or that he had sexual intercourse with her. 8. The crucial question for consideration is whether there during the fatal night Timma entered into Jema bedroom, completed his sexual intercourse with her and was then attacked by her infuriated husband, or also, whether the Appellant know from before that Timma was likely to enter his house, lay in wait for him with Katari, and then attacked him as soon as he heard the noise due to Timma's attempted entry into the bedroom of his wife. The Appellant's judicial confession which was substantially reiterated during his examination u/s 342 Code of Criminal Procedure and which is also corroborated by the earlier statements of his wife, is to the effect that Timma actually entered the bedroom of his wife and remained there for about an hour during which time he must have completed his sexual intercourse with his wife and it was thereafter that he attacked him. In his judicial confession he clearly stated that he keenly listened (kanaile) for an hour. In his statement u/s 342 Code of Criminal Procedure also he made a similar statement that he watched for an hour. In his judicial confession he clearly stated that he keenly listened (kanaile) for an hour. In his statement u/s 342 Code of Criminal Procedure also he made a similar statement that he watched for an hour. But in his statement before the Committing Magistrate he gave a slightly different version and added that as soon as the intruder made a noise by opening the tatti door he got up from his bed and when he found the deceased running away he attacked him with a katari. Apart from this discrepancy, the Appellant's statement that he watched for an hour while Timma completed his sexual intercourse with his wife and then attacked him is inherently improbable. The two previous incidents had already given him sufficient reasons to suspect his wife and in fact he had warned her on the first occasion. His lying by in the passage leading to his bedroom, with a katari by his side, was obviously done which a view to punish the intruder if he ventured into his house again; and shows that he expected him on any night and was prepared to give him a hot reception. It is therefore difficult to believe that after having known that he had entered the bedroom of his wife, the Appellant would have quietly remained outside keenly watching for one hour. In his statement u/s 342 Code of Criminal Procedure also he stated that he saw the deceased lying on his wife. It will be unnatural to expect that a jealous husband would just remain outside until the intruder completed his sexual intercourse, before attacking him. His instinct would be to rush into her bedroom and attack the guilty couple. There was, no difficulty in his entering the room because the door was a tatti door which could easily be opened. Moreover in his statement u/s 3429 I.P.C. the Appellant added that as soon as the intruder entered, his wife raised cry saying 'Chor Char'. 9. I must therefore in agreement with the learned lower court reject the Appellant's story that the attack on the deceased took place after the latter had entered his wife's bedroom and completed his sexual intercourse with her and was running away. This story has obviously been put forward to minimise the gravity of the offence w that the Appellant might escape the gallows. 10. This story has obviously been put forward to minimise the gravity of the offence w that the Appellant might escape the gallows. 10. It is true that the Appellant's wife (P.W. 9) has not been consistent in her evidence and the Public Prosecutor also declared her hostile and cross examined her. But it was quite natural for the wife to save her husband from the gallows by trying to show that the crime was committed out of sudden provocation. But the reasons already given while discussing the Appellant's three statements would apply with equal force and I must reject as improbable her story that the deceased had entered her bedroom and completed the sexual act before he was attacked. 11. During the later stages of her deposition when she was carefully questioned by the Court she appears to have come forward with the true story. She stated that she had been carrying on illicit intrigue with Timma for sometime prior to the present occurrence and that on a previous occasion when Timma came to her house thinking that the Appellant (her husband) would not be there he was disturbed and had to run away though the Appellant succeeded in hitting him with a tick. Since then she warned Timma not to come to her house saying that her husband was very jealous and that he might murder him. She also stated that she reported to her husband that timma was posturing her and that he then told her that he would see the end of him (Timma). It was for that purpose that the Appellant used to sleep outside the bedroom with a katari by his side. As regards the incident of the fatal night she stated that she got up from sleep when she heard the sound of the Tatti door being opened and that her husband also immediately got up shouting "who is there" then the deceased took to his heels. The assault on the deceased must have taken place immediately afterwards. 12. It is true that in view of the varying statements made by this woman in her evidence about the circumstances under which the deceased was murdered cannot be accepted without sufficient corroboration is found in the Appellant's own statement before the Committing Magistrate admitted u/s 257 Code of Criminal Procedure. 12. It is true that in view of the varying statements made by this woman in her evidence about the circumstances under which the deceased was murdered cannot be accepted without sufficient corroboration is found in the Appellant's own statement before the Committing Magistrate admitted u/s 257 Code of Criminal Procedure. It is true that therein he attempted to show that the intruder was a thief but he clearly admitted that as soon as he heard the sound of the opening of the Tatti door he got up from his sleep that the intruder took to hi heels and then he attacked him with a Katari. Further corroboration is found in the evidence of the Appellant's widowed sister pitai (P.W. 8) who was also living with the Appellant in his house at that time. She admitted that Timma used to frequently visit their house, that he used to addresses the Appellant's wife as 'Bhoujai' that he used to cut jokes with her and that he was very familiar with all of them. It is difficult to believe that the Appellant was unaware of this intimacy. Hence, the evidence of the Appellant's wife to the effect that the Appellant knew from before that the previous intruder into his house was none else than Timma, and that he remained alert, ready to attack him with a Katari if he dared to come again, seems very probable. It may be that the fact that Timma had sexual intercourse with Jema Dei on previous occasions was not known to the Appellant but he had reasons to suspect that there was undue intimacy between Jema Dei and the deceased and remained on guard to punish him if he come to his house again. I must in agreement with the lower court reject the Appellant's story that the attack took place when the Appellant saw Timma having sexual intercourse with his wife and when Timma attempted to run away after completing the sexual intercourse. 13. The next question is whether in these circumstances the provocation can be said to be so grave and sudden as to reduce the offence to one u/s 304 I.P.C. The provocation was undoubtedly grave but I do not think it was sudden. 13. The next question is whether in these circumstances the provocation can be said to be so grave and sudden as to reduce the offence to one u/s 304 I.P.C. The provocation was undoubtedly grave but I do not think it was sudden. The Appellant had already been told by his wife about Timma's mis behaviour and he had already given out a threat that he would 'finish' him if he ventured into his house again. His steeping in the passage leading to his bedroom with a Katari by his side, would show that he had made careful preparations and was ready to have his revenge Where there is some deliberation and desire to have revenge it cannot be said that the provocation was so sudden as to deprive the Appellant of all self control. In this connection, I would quote the following observations of Lord Goddard C.J. in R v. Duffy 1949 All E.R. 932: Indeed circumstances which induce a desire for revenge are inconsistent with provocation since the conscious formation of a desire for revenge means that a person has had time to think and reflect and that would negative sudden and temporary loss of self-control which is of the essence of provocation Provocation being therefore as I have defined it, there are two things in considering it, to which the law attaches great importance. The first of them is whether there was what is sometimes called time for cooling, i.e. for passion to cool and for reason to regain dominion over the mind. That is why most acts of provocation are case of sudden quarrels, sudden blows inflicted with an implement already in the hand, perhaps being use or being picked up, where there has been no time for reflection. Secondly, in considering whether provocation has or has not been made out, you must consider the retaliation in provocation-that is to say, whether the mode or resentment bears some proper and reasonable relationship to the sort of provocation that has been given. 14. Secondly, in considering whether provocation has or has not been made out, you must consider the retaliation in provocation-that is to say, whether the mode or resentment bears some proper and reasonable relationship to the sort of provocation that has been given. 14. When a person anticipating entry into his house of another person whom he reasonably suspects to be carrying an illicit intrigue with his wife, is determined to punish him and for that purpose keeps himself ready with a Katari by his side and as soon as he notice that person attacks him with that weapon and kills him, it cannot be said that the crime was committed under such sudden provocation as to deprive him of all self-control. There was clear deliberation and an attempt to take revenge. In fact he had made his intention absolutely clear by saying to his wife that if the deceased came again he would be killed. 15. Mr. R.C. Pattnaik for the Appellant invited my attention to the decisions reported in Desraj v. Emperor 1949 All.E.R. 932 R. v. Dulty Baliki v. Emperor 29 Cr.L.J. 454 Desrej v. E and Balku Vs. Emperor, Balik v. E where some interval of time had elapsed between the accused seeing the deceased in a compromising position with his wife and his subsequently murdering him. There the Courts hold that the provocation continued to be sudden notwithstanding the lapse of such interval. The principle of these decisions will not however apply to the instant case in view of my agreeing with the learned lower court's finding to the effect that the Appellant did not see the deceased having sexual intercourse with Jema Dei. He had only a suspicion about the illicit intimacy between the two, and lay in wait for the intruder and then attacked him as soon as he noticed his presence inside his house. 16. For the aforesaid reasons I would uphold the conviction of the Appellant and the sentence passed on him by the lower court and dismiss the appeal. Barman, J. 17. I agree. 18. Appeal dismissed. Final Result : Dismissed