JUDGMENT : S. Acharya, J. - The Appellant stands convicted u/s 302, Indian Penal Code and has been sentenced thereunder to undergo rigorous imprisonment for life. 2. The prosecution case, in short, is that on 1.5.1967 at about 10 A.M. p.w. 2, 8 Postal Runner, on his way towards village Lanjigarh met p.w. 1 on the way and told him that one Dora of his village was running on the road from Champadeipur to Lanjigarh with an axe in his hand, which was stained with blood, and p.w. 2 asked p.w. 1 to run after that man and catch hold of him p.w. 1 accordingly went running in that direction, and at village Piohhul be met that Dora, the accused, on the road, and questioned him as to where he was going. On his query the accused, the Appellant herein, told him that he killed his wife and was going to inform his daughter about that fact. He also told p.w. 1 that after informing his daughter he would go to the police station. p.w. 1 however could catch hold of the Appellant, and brought him to the village Champadeipur and produced him before the village Member (p.w. 8). While the accused was sitting under a cocoanut tree, in front of the house of p.w. 6, he expressed his desire to see his children and accordingly his son, p.w. 4, and his two other children were caned to that place. After the arrival of p.w. 4 and the other two children the accused confessed before them that he killed his wife with the axe inside his house, and consoled them by saying that they should not think of him any more. He also told them that he would soon go to the police station. The accused then was holding the axe (M.O.I) which had blood stains 00 it. The accused made the above mentioned confessional statement to his children in the presence of p. ws. 1, 6 and 8. Thereafter, the informant p.w. 1 and some of the villagers along with the accused came to Lanjigarh police station and reported the matter to the A.S.I. (p.w. 11), as per the First Information Report (Exhibit 1). On production by the accused, M.O.I, was seized under seizure list Ext. 31 in the presence of p.w. 7. 1, 6 and 8. Thereafter, the informant p.w. 1 and some of the villagers along with the accused came to Lanjigarh police station and reported the matter to the A.S.I. (p.w. 11), as per the First Information Report (Exhibit 1). On production by the accused, M.O.I, was seized under seizure list Ext. 31 in the presence of p.w. 7. The wearing cloth (M.O. II) and chaddar (M.O. III) were also seized from the person of the accused. During the investigation the accused made a confessional statement (Exhibit 4) before the Magistrate (p. w. 9) admitting the fact that it was he who killed his own wife. After investigation and commitment the accused stood his trial in the Court below for an offence u/s 302, Indian Penal Code and he was convicted and sentenced as stated above. 3. The accused pleaded not guilty to the charge, and he completely denied his complicity in the occurrence or the office. He, however, stated that one Gumpha Dora might have killed his wife. He denied to have possessed and produced the axe (M.O.I); and he retracted from his confessional statement (Exhibit 4). 4. The doctor (p.w. 3) who held the post-mortem examination on the dead body found the following injuries. (1) One antemortem lacerated wound ?" ? ?" ? ?" just below the lobe of left ear; (2) One antemortem lacerated wound (stained with blood) 1?" ? ?" ? ?" on the left mastoid process 1" back to the posterior magin of left ear (situated transversely) of the mastoid under it a depressed fraoture of 2" ? ?" size. (3) One antemortem lacerated wound (stained by blood) 1?" ? ?" ? ?" on the left side of the head extending obliquely from above downwards 2" above the left ear margin. Under a depressed fracture on the parietal bone 2" ? 1" size. (4) One antemortem lacerated vertical under size 1?" ? ?" ? ?" on the back of head 2". (5) Depressed fracture of the skull under all the above injuries. (6) Profuse hemorrhage in the membranes. (7) Brain covered by blood clots. Bathed in blood. (8) Stain of blood an over head, face and arms. He opined that the above mentioned injuries Nos. ?" ? ?" on the back of head 2". (5) Depressed fracture of the skull under all the above injuries. (6) Profuse hemorrhage in the membranes. (7) Brain covered by blood clots. Bathed in blood. (8) Stain of blood an over head, face and arms. He opined that the above mentioned injuries Nos. 1 to 4- were likely to have been caused by the blunt side of an axe like M.O.I. He also opined that death was due to coma as a result of the injuries Nos. 2, 3 and 4, and their underlying depressed fracture in the skull. He was definitely of the opinion that death was homicidal. On the above injuries on the vital part of the deceased's head and skull, and on the doctor's opinion stated above, we have absolutely no doubt that death of the deceased was homicidal. 5. There are no eye-witnesses to the occurrence. To prove the case against the accused the prosecution depends on the extra judicial confessions made by the accused in the presence of p.ws. 1, 4, 6 and 8; his confessional statement recorded by p.w. 9 on 5-5-1967; the circumstantial evidence, the subsequent conduct of the accused, the Seriologist's report (Exhibit 11) to the effect that the axe in the hand of the accused and its handle (M.O.I) and the cuttings from the saree which were worn by the deceased were stained with blood of the same group 'A' and some other articles which were seized by the Investigating Officer which contained human blood. 6. Prosecution led evidence about the motive of the crime suggesting that the deceased, the wife of the accused, was leading an immoral life with one Gumpha Dora, and 80 the accused killed her. 7. Mr. Choudhury learned Counsel for the Appellant, who appeared amicus curiae for the Appellant, without any cogent and convincing ground wanted to assail the extra judicial confession of the accused made in the presence of p.ws. 1, 4, 6 and 8, and also the Judicial confession made before p.w. 9. On a very thorough consideration of his contentions we do not find anything on which the said confessional statements can be discarded. The extra-judicial confessions were made of first before p.w. 1 and later before p.w. 4, the Appellant's own son, when p.ws. 1, 6 and 8 and the accused's other children were present at that place. On a very thorough consideration of his contentions we do not find anything on which the said confessional statements can be discarded. The extra-judicial confessions were made of first before p.w. 1 and later before p.w. 4, the Appellant's own son, when p.ws. 1, 6 and 8 and the accused's other children were present at that place. There is nothing to disbelieve the evidence of p.w. 4, and that of p.ws. 1, 6 and 8. They have consistently narrated the premises and the manner in which the said extra-judicial confession was made by the accused while he was sitting underneath the cocoanut tree in the presence of his children. The text of the confessional statement, as narrated by each one of these witnesses, tallies in an material particulars. That again is materially the same as that of his statement u/s 164 Code of Criminal Procedure recorded by the Magistrate p.w. 9. P.w. 1 is the person who actually apprehended the accused and brought him back to his village. p.w. 4 is the son of the Appellant, p.w. 6 is the Post Master of the village Branch Post Office, and p.w. 8 is a Co-Villager. According to these witnesses the accused was brought by p.w. 1 to his village and was sitting underneath a cocoanut tree in front of the house of p.w. 6, where he made the second extra judicial confession before them and his other children. Nothing has been elicited from any of these witnesses as to why they would falsely attribute such a confessional statement to the Appellant, implicating him in a serious offence of murder. The premises in which the aforesaid conception was made makes it evident that nobody ever coaxed or coerced the accused to make the above confessional statement. Thus the above statement undoubtedly is voluntary and true. 8. The Appellant also made a confessional statement (Ex. 4) on 5.5.1967 before p.w. 9, a First Class Magistrate. The Appellant was at first produced before the Magistrate on 4-5-1967 for recording big confessional statement. On that day the Magistrate disclosed his identity, and gave him all the necessary cautions, and remanded him to jail custody till the next day for reflection. 00 5.5.1967 be was again produced before the Magistrate at 11 A.M. and according to the Magistrate, he kept him in charge of his own peon inside his Court-room where there was no police officer. 00 5.5.1967 be was again produced before the Magistrate at 11 A.M. and according to the Magistrate, he kept him in charge of his own peon inside his Court-room where there was no police officer. The Magistrate again gave him half an hour's time for reflection, and gave him an the necessary cautions and told him that he was not required to make any confessional statement, and that if he would do so that would be considered against him in his trial. When the accused stated clearly that he was making the statement out of his own accord, and that nobody had tutored him to make such confessional statement" the Magistrate recorded his confession at 11.30 A.M. Therein he very clearly stated before the Magistrate that he killed his wife with a Tangia, by giving at first two blows on her head, on the back side of her ear and neck, and thereafter he gave her several blows which be did not remember. He, however, stated therein that he did that as his wife did not listen to his entreaties for not leading an immoral life in old age. His wife as stated therein reacted to his above entreaties by replying that she would devour him and would run away from him. She also refused to go to the Monday Weekly market. He also stated that as she was leading an immoral life he killed her out of rage. P.ws. 1, 2, 4, 6 and 8 saw a blood stained axe in the hand of the accused and he was taken to the Police Station with the said axe in his hand. The A.S.I. (p.w. 11) seized under Ext. 3/1 the Tangia. M.O.I on production by the accused at the Police Station. The wearing cloth, M. O. II, and the Chadar M.O. III on the person of the accused were seized by p.w. 11 as per Ext. 6. The axe M.O.I. and the sari on the person of the deceased were both stained with the same group of blood. The doctor, p.w. 3 opined that the first 4 above mentioned injuries on the person of the deceased were likely to have been caused by the blunt side of the axe M.O.I. All the above mentioned articles as seen from the Serologist's report, were found to have been stained with human blood. The doctor, p.w. 3 opined that the first 4 above mentioned injuries on the person of the deceased were likely to have been caused by the blunt side of the axe M.O.I. All the above mentioned articles as seen from the Serologist's report, were found to have been stained with human blood. The evidence of p.w. 4 the son of the accused, and that of p.w. 5, another woman of the locality, shows that the deceased had developed some illicit intimacy with one Gumpha Dora of the village. The injuries on the dead body also lend corroboration to the above mentioned confession made before the Magistrate. On the above materials and the evidence on record we are satisfied that the above mentioned confession made by the accused before the Magistrate was voluntary and true. Thus there is no doubt that the accused killed the deceased, his own wife. 9. Mr. Choudhury next urged that on the above mentioned confessional statements the offence of which the Appellant could be held guilty would be one of culpable homicide not amounting to murder, as the act of the Appellant would be within Exception I to Section 300, Indian Penal Code. Under Exception 1, culpable homicide is not murder if the offender, being deprived of the power of self control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. From the explanation attached to Exception I, there is no doubt that it is always a question of fact whether the provocation in a particular case was grave and sudden enough to prevent the offence from amounting to murder. As laid down by the Supreme Court in K.M. Nanavati Vs. State of Maharashtra, . (1) 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 would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to Section 300 of the Indian Penal Code. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation. An act, or a series of acts, or words, gestures, or even conduct of a person, previous to the occurrence, by their very nature might cause provocation leading to sudden loss of self control in a reasonable man. The cumulative effect of all that, and the possible mental reaction and back ground created under those circumstances, and the class of society to which the accused belongs, should all be taken into consideration in order to ascertain if the acts, words, gestures or any conduct of the victim, immediately preceding the offence, taken either separately or in combination, were sufficient to cause grave and sudden provocation for committing the said offence. 10. In this case the accused stated in his confessional statement u/s 164, Code of Criminal Procedure, (Ex. 4), that he killed his wife as she did not listen to his repeated entreaties for not leading an immoral life in old age. His wife reacted to his above entreaties by replying that she would devour him and would run away from him. She refused to go to the weekly market as desired by him. Due to the above reasons the accused killed his wife out of rage p.w. 4, the son of the deceased and the accused, stated to have seen one Gumpha Dora getting inside a room in their house at night where his mother, the deceased, was sleeping alone. She refused to go to the weekly market as desired by him. Due to the above reasons the accused killed his wife out of rage p.w. 4, the son of the deceased and the accused, stated to have seen one Gumpha Dora getting inside a room in their house at night where his mother, the deceased, was sleeping alone. He produced certain clothes of Gumpha Dora from their house before the police p.w. 5, a woman of the locality deposed to the fact that 2 months prior to the occurrence, the wife of the accused, i. e. the deceased, once came to her and requested her to inform the said Gumpha Dora that she would like to run away with him. The evidence of p.ws. 4, and 5 to the above effect suggest that the deceased, the wife of the accused, had illicit intimacy and was in intrigue with the said Gumpha Dora of the village. After the murder and very soon after the accused was apprehended he plainly confessed before p.w. 1 and his own children and some of the villagers that he killed his wife. He made that statement without being asked or coaxed by any body. As seen above both his extra judicial and judicial confessions are voluntary and true. The material portion of the reason for killing the wife, as stated by the accused in Ext. 4, gets suitable corroboration from the above mentioned evidence of p.ws. 4 and 5. Because of all these we are satisfied that the reasons for killing his wife as stated by the accused, are true. It is quite evident therefrom that the accused knew that his wife was leading an immoral life with some body else in the village, and she was not listening to his repeated entreaties, forbidding her not to indulge in such nefarious activities. That being so it was quite but natural that the accused was mentally perplexed, vexed, and agitated over such a matter. When he was in that perplexed and agitated mood and his wife, reacted to his entreaties in the above mentioned various and nauseative manner, and refused to go to the weekly market, the accused killed her (the deceased) out of rage. When he was in that perplexed and agitated mood and his wife, reacted to his entreaties in the above mentioned various and nauseative manner, and refused to go to the weekly market, the accused killed her (the deceased) out of rage. On all the above facts and circumstances we are of the opinion that there was cause for grave and sudden provocation in this case and so the case comes within Exception I to Section 300, Indian Penal Code. Accordingly the conviction of the accused u/s 302. Indian Penal Code cannot be maintained, and he can only be found guilty of an offence of culpable homicide not amounting to murder, punishable u/s 304, Indian Penal Code. As the said offence of culpable homicide not amounting to murder was certainly done with the intention of causing the death of the wife, the Appellant is to be held guilty u/s 304. Part I, Indian Penal Code. 11. In the result, therefore, the conviction of the Appellant u/s 302, Indian Penal Code and the sentence passed thereunder are set aside, and instead he is convicted u/s 304 Part I, Indian Penal Code and is suntanned thereunder to undergo R.I. for 7 years. The appeal accordingly is partly allowed. S.K. Ray, J. 12. I agree. Final Result : Allowed