JUDGMENT : Das, J. - The accused-Appellant Dharanidhar alias Landu Mahakud stands convicted u/s 302, Indian Penal Code and sentenced to death by an order dated 22-10-1963 passed by the Sessions Judge, Ganjam-Boudh, in Sessions Case No. 7 of 1963 (B). 2. The deceased Saraswati is the widow of the elder brother of the Appellant who belongs to village Nuapali in the district of Phulbani. Saraswati's husband died about four or five years prior to the date of occurrence leaving the deceased and two young daughters. P.W. 12 Chakra Mahakud, a younger cousin-brother of the husband of Saraswati was looking after the properties of Saraswati after her husband's death. In course of time Saraswati developed illicit intimacy with him and this gave rise to frequent quarrels between Saraswati the deceased, and the Appellant, a younger brother of her late husband. It appears that the Appellant wanted to marry Saraswati but the latter refused on the ground that she had two children and the Appellant also had his wife and children living with him. These circumstances are alleged to be, the motive for the murder. 3. The prosecution case is that on 9-3-1963 sometime after midnight the accused committed the murder of Saraswati while she was sleeping in her house P.W. 4 a police constable who was on patrol duty in some neighbouring village being informed by one Parameswar Guru that a lady had been murdered in her house in village Nuapali, went there along with the Chowkidar and reaching at the spot, he sent the Chowkidar to the police station keeping himself guard over the deadbody. P.W. 14, an A.S.I. of the neighbouring police out-post having got the information from the Chowkidar arrived at the spot when P.W. 4 gave him a written report (ext. 4), which was treated as the first information report by the police sub-inspector, P.W. 15. After investigation, the accused along with his father. Kunja Mahakud, were charge-sheeted and committed to the Court of Sessions for trial. The learned Sessions Judge, however, while acquitting the accused Kunja Mahakud, convicted and sentenced the Appellant has stated above. It is against this order of conviction and sentence, the Appellant has preferred Criminal Appeal No. 184 of 1003 and the learned Sessions Judge has made a Reference u/s 374 of the Criminal Procedure Code. The learned Sessions Judge, however, while acquitting the accused Kunja Mahakud, convicted and sentenced the Appellant has stated above. It is against this order of conviction and sentence, the Appellant has preferred Criminal Appeal No. 184 of 1003 and the learned Sessions Judge has made a Reference u/s 374 of the Criminal Procedure Code. Both the reference and appeal were heard together and are disposed of by this common judgment. 4. The plea of the accused was one of a denial. He also retracted the judicial confession made before a Magistrate (p.w. 1). 5. There is no eye-witness to the occurrence. The pro section case is mainly based upon: (i) Confessional statement (ext. 1) made before P.W. 8 by the accused, a few days after the occurrence. (ii) Extra-judicial confession made by him before P.W. 7. (iii) He was seen in the house of the deceased on the night of occurrence at about 9 p.m. and was found coming out of the said house sometime before the dawn. (iv) Recovery of a blood-stained Tangi (M.O.T.) belonging to the deceased at the instance of the accused kept concealed by him. (v) Detection of blood-marks on the wearing apparel of the accused. 6. It appears from the evidence of P.W. 1, a Magistrate, 1st Class, Md. Raffiq, that on 12-3-1963 the Appellant was produced before him for making a confessional statement. P.W. 1 gave, him the necessary warning and remanded him to jail custody till the following day, when he again gave him the usual warning before he recorded the confession. From the evidence of P.W. 1 it appears that he was satisfied that the confession was a voluntary one. In the said confession, the Appellant had clearly stated that he had killed Saraswati, the wife of his brother, by means of a Tangi. The reason given by the accused was that Saraswati was first in love with him, but later on she abandoned him and loved Chakra Mahakud, P.W. 12. The accused in his statement before the Court of Sessions denied to have made any such statement. This was obviously false in view of the evidence of P.W. 1 and the confessional statement (ext.I) itself. Nothing has been brought out to suggest that the confession was not a voluntary one. The accused in his statement before the Court of Sessions denied to have made any such statement. This was obviously false in view of the evidence of P.W. 1 and the confessional statement (ext.I) itself. Nothing has been brought out to suggest that the confession was not a voluntary one. That the confession is also true, cannot be doubted in view of the other evidence in the case which lends ample corroboration to the confession as also to the prosecution story as I shall presently show. 7. It appears from the evidence of P.W. 7 that the accused also had confessed before him to have committed the murder of Saraswati. P.W. 7 is no order than the maternal uncle of the Appellant. His evidence reveals that on the night of occurrence he and his son-in-law were staying in the house of the accused as guests and sometime before the dawn when he came out for easing himself, he met the Appellant who told him to go inside the house as there was a bear nearby. Out of fear P.W. 7 came inside the house and thereafter when he enquired of the accused as to what the matter was, the latter confessed that he had stabbed his widowed sister-in-law meaning the deceased. Hearing this, the mother of the accused who was there, became senseless and fell down. Nothing has been brought out to discredit the evidence of this witness and there is no reason why P.W. 7 would falsely implicate the accused, his own sister's son, in such a crime. 8. It appears from the evidence of p.ws. 5 and 6 that they saw the accused coming out of the house of the deceased sometime before the dawn following the night of occurrence. Not much importance can be given to the evidence of P.W. 5, as on his own admission, he was an old man and his sight was defective and he could not identify the accused properly. But so far as the evidence of P.W. 6 is concerned, it stands unchallenged. He is just a neighbour of the accused and also a close relation of his father and the Appellant's father being two brothers. But so far as the evidence of P.W. 6 is concerned, it stands unchallenged. He is just a neighbour of the accused and also a close relation of his father and the Appellant's father being two brothers. He had stated that sometime before the dawn following the night of occurrence when he was in his bed, he was called out by his father to see as to who was coming out of the house of the deceased and coming out he saw the Appellant, at a close distance of about seven to eight cubits, holding something like a Lathi or a Tangi in his hand. It further appears from his evidence that he had seen the Appellant in the house of the deceased on the very night of the occurrence at about 9 p.m.. Thus his evidence makes it clear that the Appellant was present in the house of the deceased both prior and subsequent to the occurrence and while coming out of the house he was also seen with some weapon in his hand, like a Tangi or a Lathi. 9. It appears from the evidence of the I. O., P.W. 15 that the accused led him to the place where the Tangi, M. O. I., was kept concealed under a barn in a bamboo container called Lundra. P.W. 3 who was looking after the cultivation of the deceased for a period of about four years and had just left her services prior to the occurrence, has identified M.O. I as belonging to the deceased. P.W. 11 is a witness to the seizure of M.O. I under the seizure list, ext. 8 and he has stated that the Tangi was recovered from the house of the Appellant. Some blood-stains were found on the Tangi as appears from the Chemical Examiner's report. No explanation has been offered by the accused for the existence of blood-marks on his wearing apparels, M.Os. II and III. According to P.W. 15, M.Os. II and III, a Dhoti and Napkin respectively were recovered from the possession of the Appellant. 10. That the deceased was in illicit love with Chakra Mahakud has been established by the evidence of P.W. 12 himself. II and III. According to P.W. 15, M.Os. II and III, a Dhoti and Napkin respectively were recovered from the possession of the Appellant. 10. That the deceased was in illicit love with Chakra Mahakud has been established by the evidence of P.W. 12 himself. He has very frankly admitted that after his wife left him, he carried illicitly love with the deceased and had sexual connection with her for a period of about five years prior to the occurrence and was looking after her properties. He even admitted that he had sexual intercourse with the deceased just two days prior to the occurrence. He had further revealed that several months prior to the occurrence, the Appellant also developed illicit love with the deceased and that he also wanted to marry her as she his own elder brother's wife. This proposal of the Appellant was refused by the deceased because the Appellant had his wife and children living and in case such a marriage takes place, there would always be quarrels in the family. Thus, the evidence of P.W. 12 lends corroboration to the story given in the confessional statement. The refusal of the deceased to marry the Appellant is attributed as a motive for the murder. 11. That the deceased was assaulted by a Tangi cannot be doubted in view of the evidence of the doctor (p.w. 8) who found as many as twenty-seven incised injuries on the person of the deceased, and according to the doctor the sharp side of the blade of a Tangi (M.O. I) might have caused these injuries which were ante mortem in nature and were sufficient in ordinary course of nature of cause death. 12. Thus, the evidence of the prosecution, the confessional statement (ext. I), the extra-judicial confession, recovery of the blood-stained Tangi and clothes at the instance and from the possession of the accused and his presence at about the time and place of occurrence fully make out the case against the accused beyond an reasonable doubt that it was he who committed the murder of the deceased Saraswati on the night of occurrence. 13. Mr. A.K. Tripathi, learned Counsel for the Appellant, however, contended that the murder must have been committed under grave and sudden provocation and as such the accused cannot be held guilty u/s 302, Indian Penal Code. 13. Mr. A.K. Tripathi, learned Counsel for the Appellant, however, contended that the murder must have been committed under grave and sudden provocation and as such the accused cannot be held guilty u/s 302, Indian Penal Code. His argument was that according to the prevailing caste custom the Appellant was entitled to marry the widow of his elder brother and since the deceased refused to marry him, that might have given him the provocation to commit the assault. This contention is absolutely unfounded. There is no evidence to show that such a caste-custom did exist in the family of the accused. Assuming that such a custom did exist, nobody can be compelled to marry against his or her wishes. That apart, the accused could not marry another wife during the lifetime of his wife. In any case such a refusal cannot be a ground for provocation. The onus was on the accused to bring his case within the Exception to Section 300, Indian Penal Code. That this onus is on the accused cannot be doubted in view of the provisions of Section 105 of the Evidence Act, which lay down that the burden of proving that the case of the accused comes within any of the exceptions u/s 300, Indian Penal Code, is on the accused, and the Court shall presume the absence of such circumstances if the burden is not properly discharged. Section 105 of the Evidence Act, Illustration (b) clearly lays down: (b) A, accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A. In the absence of such clear proof by the defence, no doubt, it is open to the Court to draw its own conclusions regarding the existence of such grave and provocative circumstances from the evidence and materials on record. Here, however, nothing has been brought out to support such an argument, nor has the accused put forward any such plea in his statement. On the other hand, he has wholly denied the occurrence. As already stated, it appears clear from the evidence of P.W. 12 that the Appellant was in illicit love with the deceased some months prior to the occurrence, and it may be presumed that he was continuing to do so until the date of occurrence. On the other hand, he has wholly denied the occurrence. As already stated, it appears clear from the evidence of P.W. 12 that the Appellant was in illicit love with the deceased some months prior to the occurrence, and it may be presumed that he was continuing to do so until the date of occurrence. It was known to the accused also that P.W. 12 was in similar illicit love with the deceased for several years prior to the occurrence. Moreover, the deceased was not the wife of the Appellant and any illicit connection that she developed with P.W. 12 cannot be taken as a ground for any grave and sudden provocation for the accused to commit the murder. If at any time, he had such a provocation, it must have cooled down in course of years. Assuming also that it was the refusal of the deceased to marry the Appellant, that caused the provocation that also cannot be taken as a ground for any grave and sudden provocation, because as appears from the evidence of P.W. 12 such a proposal was made to the deceased long prior to the occurrence but was rejected by her. Therefore, neither the long-standing illicit relationship of the deceased with P.W. 12, nor the rejection of the marriage proposal of the Appellant by her can be taken as a good ground for causing any grave and sudden provocation to the Appellant. 14. In the well-known case of K.M. Nanavati v. State of Maharastra AIR 1662 S.C. 605. their Lordships held that the test of grave and sudden provocation is whether a reasonable man belonging to the same class of society as the accused, placed in the situation in which the accused was placed, could be so provoked as to lose his self-control. The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion has cooled down by lapse of time or otherwise giving room and scope for premeditation and calculation. In the present case as we have seen months and years had elapsed, since the deceased allowed illicit intimacy both to the Appellant and P.W. 12 and passions arising from any provocation must have cooled down by the time the murder took place. In the present case as we have seen months and years had elapsed, since the deceased allowed illicit intimacy both to the Appellant and P.W. 12 and passions arising from any provocation must have cooled down by the time the murder took place. In that view of the matter, it cannot be said that the alleged murder was committed under any grave and sudden provocation so as to bring the case within Exception (1) to Section 300, Indian Penal Code. The accused has therefore rightly convicted u/s 302, Indian Penal Code. 15. So far as the question of sentence is concerned, Mr. Tripathi contended that after the amendment of Section 367 of the Code of Criminal Procedure by (Amendment) Act 26 of 1955, the Courts are not called upon to impose the extreme penalty unless there are some aggravating circumstances in the case and that ordinarily the lesser sentence is to be inflicted. In support of his contention he relied upon a decision reported in Re: Ammalla Kameswar Rao AIR 1963 Andhra Pradesh 249. In a Division Bench decision of this Court in the case of Arjoon alias Polket Domb v. State Death Reference No. 7 of 1962 and Criminal Appeal No. 149 of 1962, it was held that the 1955 Amendment has not affected the law regulating punishments under the Indian Penal Code, Section 302 of which provides two categories of punishments without specifying what sentence should be imposed and under what circumstances. The question is left entirely to the judicial discretion of the Court to award appropriate penalty. In a case reported in Ram Singh v. State AIR 1960 Allahabad. 748. the same view was also taken. The measure of punishment to be inflicted in each case cannot be too precisely stated. It is a matter left absolutely to the discretion of the Court who of course has to exercise it judiciously and not capriciously. In the present case, the learned Sessions Judge considering the number of injuries inflicted on the deceased and the weapon mead thought it a fit case for the award of the extreme penalty in law. It cannot be said that the sentence imposed by him is inappropriate. In the present case, the learned Sessions Judge considering the number of injuries inflicted on the deceased and the weapon mead thought it a fit case for the award of the extreme penalty in law. It cannot be said that the sentence imposed by him is inappropriate. But under the circumstances of the case, what appears to me is that the accused though himself a frustrated lover, could not tolerate the idea of his own widowed sister-in-law developing illicit intimacy with an outsider and he might have been actuated by the motive to preserve the reputation of the family by putting an end to the deceased. Moreover, the immediate cause for the murder on that night is still left in obscurity. Under such circumstances, I think the lessor sentence provided in Section 302, Indian Penal Code would meet the ends of justice. While therefore maintaining the conviction of the Appellant u/s 302, Indian Penal Code, I would alter the sentence of death to one of R.I. for life. With this modification in the sentence, the appeal is dismissed and the Death Reference is discharged. Misra, J. 16. I agree. 17. Appeal dismissed-Sentence modified-Reference discharged. Final Result : Dismissed