SADANANDASWAMY, J. ( 1 ) THE appellant has been convicted for an offence under S. 302 IPC. and sentenced to undergo imprisonment for life. The victim of the crime is Shantavva, the eldest daughter of Shivappa Tukkappanavar, a resident of Aminbhavi. Her mother is Gangavva. Gulappa and Ramappa are her brothers and Yellavva is her sister. Shantawa was aged about 22 years and was married about two years prior to her death which took place on 5-11-68. Her husband is one Gangappa Shibargatti. She had returned from her husband's house since 5 or 6 months prior to her death and was residing with her parents at Aminbhavi. She was in illicit intimacy with one Basappa Petunavar of Aminbhavi. ( 2 ) SHIVAPPA Tukkappanavar, his wife and children resided in a portion of the house situated in Basti Oni at Aminbhavi separately from shivappa's father Tukkappa. In another portion of the same house, Yellappa with his wife Yamanavva and their sons Basappa and Fakirappa (the accused) resided. Yellappa is the brother of Tukkappa who is the paternal grand-father of the deceased. Tukkappa also resided in another portion of the said house. ( 3 ) THE said house has a back-yard towards its south. On 5-11-1968, on Tuesday, which was also a full-moon day, in the morning at about 9-30 A. M. Shantawa was cleaning the utensils in the back yard of that house. At that time, her father and her grand-father had gone out of the house for cooly work, her mother Gangavva was besmearing the floor of her kitchen, and her children Ramappa and Yellawwa were playing in - the house. The accused Fakirappa who had gone out returned to his house. While returning to his house, he saw Shantawa engaged in making signs to her paramour Basappa Petunavar, who was at a distance. After returning to his house, he was with his mother in his house for some time. Then he went to the back yard. Then there was exchange of words between him and Shantawa. The accused seems to have taken exception to the conduct of Shantawa. Shantawa retorted saying that he had no business to question her even if she carried on an affair with others. The accused got offended and said that his family reputation was being spoiled by her and attacked her with a sickle and delivered blows at her neck with it. Shantawa retorted saying that he had no business to question her even if she carried on an affair with others. The accused got offended and said that his family reputation was being spoiled by her and attacked her with a sickle and delivered blows at her neck with it. Gangavva went to the rescue of her daughter and cried for help. One Subbiah came. She then ran bawling out to the house of the police patil which was nearby and informed him that the accused was attacking her daughter. Then the Patil and Gangavva returned to the house, but by that time Shantawa was lying dead having sustained cut injuries on her chest and neck. On seeing the police patil, the accused who was in his portion of the house began to run away, but he was immediately caught by the patil. The patil kept a walikar on watch over the dead body and broueht the accused to the Dharwar Police Station with the assistance of another Walikar and produced the accused before the Sub-Inspector of police and lodged a complaint. ( 4 ) THE offence was registered as Crime No. 82/68 and the accused was arrested and his blood-stained shirt and dhoti on his person were attached under the panchanama. The police Sub-Inspector questioned the accused. The accused voluntered information and produced a sickle. The PSI. recorded the information furnished by the accused and proceeded with the accused to Aminbhavi. ( 5 ) THE accused produced the sickle from inside the kitchen of his house and the same was attached under a panchanama. Then an inquest panchanama was drawn up, the dead body was sent to the Civil Hospital at Dharwar for post-mortem examination. The panchanama of the scene of offence was drawn up and the blood-stained earth removed from the spot and the Mangalasutra or Guladali lying on the ground were attached. ( 6 ) THE Medical Officer, Sri Kalaburgi, conductd the post-mortem examination on 6-11-1968 and the clothes and ornaments found on the dead body were returned with the dead body to the police. The P. S. I, conducted the investigation till 6-11-1968 and thereafter the Circle Inspector of Police. Dharwar, took up further investigation. The PSI. assisted him. The blood-stained clothes and articles etc. , were sent to the chemical Examiner and they were got examined. The P. S. I, conducted the investigation till 6-11-1968 and thereafter the Circle Inspector of Police. Dharwar, took up further investigation. The PSI. assisted him. The blood-stained clothes and articles etc. , were sent to the chemical Examiner and they were got examined. A sketch of the scene of offence was also got drawn up. The charge-sheet was sent to the Court' of JMPC. , Dharwar. ( 7 ) DURING the inquiry, the Committal Court recorded the evidence of four eye-witnesses-Gangavva, Yellavva, Ramappa and one Subbiah, and the last witness was treated hostile. The accused pleaded not) guilty. A charge was framed against the accused for an offence under S. 302 IPC. and he was committed to take his trial in the Court of Sessions at Dharwar. ( 8 ) THE prosecution examined 17 witnesses. The accused admits his relationship with the deceased. His plea is that the relationship between his father and his senior uncle were not cordial and that due to ill-will, gangavva and his children have reported against him. He also pleaded that he was formerly a servant of the police patil PW. 1,, that the latter had to pay him wages and when he insisted on payment, the patil had not paid him and removed him from service, and that Gangavva and the police patil together have filed a false complaint against him. No witnesses have been examined on behalf of the defence. ( 9 ) THE points which are set out by the trial Court for its decision are as follows: (i) Whether it is established by the prosecution that the deceased shantavva met a homicidal death ? (ii) If so, whether this accused is responsible for her death as alleged? (iii) Tf so, what offence the accused has committed? the trial Court answered the first two points in the affirmative and convicted and sentenced the appellant for the offence under S. 302 IPC. to imprisonment for life. ( 10 ) IN this appeal, the same points as set out above arise for decision. ( 11 ) THE fact that the deceased met a violent death is not seriously disputed. The lower Court was therefore right in holding that the prosecution has established that the deceased Shantavva met with homicidal death. to imprisonment for life. ( 10 ) IN this appeal, the same points as set out above arise for decision. ( 11 ) THE fact that the deceased met a violent death is not seriously disputed. The lower Court was therefore right in holding that the prosecution has established that the deceased Shantavva met with homicidal death. ( 12 ) THE next question to be considerered is whether the appellant is responsible for causing the death of the deceased by delivering blows with the sickle as alleged by the prosecution. The prosecution relies upon both direct and circumstantial evidence Out of the four eve witnesses, three have been examined. Gangavva PW. 9 is the mother of the deceased. PW. 4 Ramappa, PW. 8 Yellavva, the younger brother and the younger bister of the deceased respectively are child witnesses. The other witness subbiah was examined in the Committal Court and since he did not support the prosecution case, he was treated as hostile and he was not examined in the trial Court. The prosecution relied upon the following circumstances: (1) the movement of the accused just prior to the incident; (2) His attmept to run away from his house on seeing the police patil; (3) His being caght by the police patil immediately and the presence of blood-stains- on his shirt and dhoti; (4) the information furnished by the accused to the PSI. which led to the discovery of the sirkle and the recovery of the blood-stained sickle in the house of the accused. ( 13 ) THEREFORE, we may safely conclude that the accused cut the deceased with with MO. 5 and kept it in the kitchen. 20 (b ). The evidence of PWs. 4, 8 and 9 coupled with the fact that the accused was caught by PW. 1 with blood-stained clothes on his body immediately after the incident and the recovery of the sickle from the kitchen room of the house of the accused and identification of MO. 5 by pw. and as the one with which the accused cut Shantavva arc sufficient to establish the guilt of the accused. 1 with blood-stained clothes on his body immediately after the incident and the recovery of the sickle from the kitchen room of the house of the accused and identification of MO. 5 by pw. and as the one with which the accused cut Shantavva arc sufficient to establish the guilt of the accused. ( 14 ) IT is contended on behalf of the appellant that even according to the case of the prosecution, the conversation that took place between the accused and the deceased shows that the words of the deseased were; sufficient to provoke the accused to make him lose his self-control and ' and that even if it is to be found that the accused has committed the prime, it would amount only to an offence under Section 304 Indian Penal Code, and not one under Section 302 Indian Penal Code. A similar contention , was urged in the case reported in Re. Jamaluddin ,ilr, 1955 Mad. 1227,. The accused in that case was looking after the affairs of his first cousin, the deceased, aged twenty-two, for some five years before the occurrence as her parents were dead, and her husband and brother were residing outside the country the accused was not her guardian nor was she living under his protection. He was merely a friend and helper, looking after her affairs. There was a rumour that the deceased was living a loose life. According to the accused in that case, he went to the house ot the deceased and found her having sexual intercourse with some man, but the man on seeing him ran away and that unable to control his anger, the accused stabbed his cousin, the deceased. The case as set out by the accused was accepted as true. According to the accused in that case, he went to the house ot the deceased and found her having sexual intercourse with some man, but the man on seeing him ran away and that unable to control his anger, the accused stabbed his cousin, the deceased. The case as set out by the accused was accepted as true. ( 15 ) IT was held rejecting the contention of the accused, that "though there are rulings to the effect that when a wife or mother or married sister, living under the protection of the husband or son or brother is caught in the act of having sexual intercourse with a stranger, the killing of that stran ger, before there is time to get over the sudden anger, would be only an offence under S. 304, IPC , there is no ruling that a person, like the appellant, not being the guardian or custodian of a woman like the deceased, a mere first cousin, would have a similar right to kill her and claim to be convicted only under S. 304 IPC. We consider that the ruling referred to above should not be extended to first cousins, second cousins and others, especially when they are also not in the custody or protection of the individual killing them". The conviction under S. 302 IPC. was confirmed. We are in full agreement with the above said observations. In the present case, the father of the deceased is the cousin of the accused. The family of the accused and the family of the deceased were living in different houses though they arc of different portions of the same building. ( 16 ) IT cannot be said that the deceased was in any way under the protection or care of the accused. On the other hand, the suggestion made in her cross-examination to PW. 9 is that there is a dispute with regard to the house property between the family of the deceased and the family of the accused and that the two families are not on good terms on that account. Hence, the appellant cannot urge that the offence committed by him comes only under S. 304 IPC. and not under S. 302 IPC. 30. A number of decisions were relied on by the appellant. In In Re. Murgicm, AIR. 1957 Mad 541. Hence, the appellant cannot urge that the offence committed by him comes only under S. 304 IPC. and not under S. 302 IPC. 30. A number of decisions were relied on by the appellant. In In Re. Murgicm, AIR. 1957 Mad 541. the accused asked his wife to give up her illicit intimacy with her paramour. The wife said that she would not give him and abused the accused and said that she would continue her intimacy with her paramour. The accused immediately hurt his wife and killed her. ( 17 ) IT was held that the case comes within the purview of S. 304 (1) IPC. In In Re. Kanan. , AIR. 1953 Mad 579 it was hem that beating another person with a shoe is considered to be the height of shame and particularly in the midst of a number of villarers right in the street, and that an attempt to beat a man with shoe would give sufficient provocation to the man intended to be beaten and that it would constitute grave and sudden provocation bringing the offence under S. 304 (1) IPC. if the person who was sought to be beaten retaliated bv stabbing the deceased with a pen knife, which he was carrying in his pocket. The present case is not one of attempting to beat with a shoe in the presence of villagers in the street. In Atma Ram v. State,air. 1967 Pun. and Har. 508. it was held that the foul words used by the deceased wife to her husband would be sufficient to provoke such a degree of frenzy and resentment, In the man situated in the position of the accused they would make him lose all power of self-control so as to bring the killing of the wife by the husband under the provisions of S. 304 (1) of the IPC. In Amarit Singh v. State, AIR, 1970 Pun. and Har. 279 the son on hearing the father abusing him and saying that he must provide him with money even though he had to get his mother prostituted for raising it, immediately inflicted blows with a knife on the lather and killed him, was held to be an oftence committed under grave and sudden provocation entitling the accused to the benefit of exception i to S. 300 and consequently, the offence committed by him was one under s. 304 IPC. In the present case, the language used by the deceased was not such as to amount to insulting the mother of the accused. On the other hand, the deceased only questioned the right of the accused to interfere with her own affairs. In Hussain v. Emperor, AIR. 1939 Lah. 471. it was held that the accused killing another man iound in his wife's bed in an attempt to commit adultery with her is entitled to the benefit of Exception I to S. 300 IPC. and that he can be convicted only u. s. 304 IPC. The present case is not a case of the husband being taken by surprise in finding his wife being unfaithful or a case of provocation by the wife. Hence, the cases dealing with the offence committed by the husband on being provoked by the misconduct of the wife are not applicable. ( 18 ) THE learned. State Public Prosecutor has relied on the following observations in K. M. Nanavati v. State of Maharashtra, AIR. 1962 SC. 605. "in India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution to prove the guilt of the accused, to put it in other words, the accused is presumed to be innocent, until his guilt is established by the prosecution. But when an accused relies upon the General exceptions in the Indian Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offence, S. 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Under that Section the Court shall presume the absence of circumstances bringing the case within any of the exceptions that is, the Court shall regard the non-existence of such circumstances as proved till they are disproved. "and contends that the burden is on the accused to show that the offence committed by him comes under any of the Exceptions and that he has failed to do so in this case. His contention has to be upheld. The appeal is therefore dismissed, and the conviction and sentence passd on the appellant are confirmed. --- *** --- .