JUDGMENT 1. This appeal of Nathia appellant is directed against the judgment of the learned Sessions Judge, Udaipur dated February 24th, 1972 where by the appellant has been convicted under section 302 I P.C. and sentenced to imprisonment for life. He has also been convicted under section 324 Indian Penal Code to cause simple injuries to his wife Andu and sentenced to one year rigorous imprisonment. 2. The facts giving rise to this case are not much in dispute. Deceased Wajia was the real brother of Nathia appellant. On the night between 17th and 18th May, 1971 Wajia was seen by the accused having sexual intercourse with his wife Mst. Andu. The accused, it is alleged, caused injuries with a sword on the person of Wajia which resulted in his instantaneous death. Accused was arrested next day and at the time of his arrest he was found to be in possession of sword Ex. 1 which was not found to be stained with blood. The Dhoti which the accused was wearing was however found to be blood stained and therefore it was ceased by the arresting officer. Dhoti when sent to the Chemical Examiner and the Scrologist, was found to be blood stained. 3. Mst. Andu, wife of the accused, the sole eye-witness divulged the prosecution story at the stage of enquiry (vide Ex. P. 7) like this : that the accused on that fateful night told her that his camel had been lost and, therefore, he was going in search of that camel ; but instead of going out of the house he hid himself behind the Kothi. Deceased Wajia came to her house in the night and indulged in the sexual intercourse with her. Thereafter both Andu and Wajia slept for sometime. When for the second time both of them indulged in sexual intercourse, Nathia appeared at the scene and inflicted sword blows on the person of Wajia. Wajia tried to go out of the house but no sooner he icached the chowk, he fell down and died. At the trial Mst. Andu resiled from this portion of her previous statement that Nathia had hidden himself behind the Kothi. On the request of the prosecution the previous statement of Mst. Andu Ex. Wajia tried to go out of the house but no sooner he icached the chowk, he fell down and died. At the trial Mst. Andu resiled from this portion of her previous statement that Nathia had hidden himself behind the Kothi. On the request of the prosecution the previous statement of Mst. Andu Ex. P. 7 recorded before the committing court was brought on the record in evidence under section 288 Cr P. C. Learned Sessions Judge while' placing reliance on the previous statement of Mst. Andu and rejecting the case set up by the defence that the accused acted under the grave and sudden provocation held that the provocation no doubt, was grave when the accused saw his wife actually indulging in sexual intercourse with his brother Wajia but it was not sudden as Nathia had hid himself with a sword in his hand behind the kothi to witness the infidelity of his wife towards him and, therefore, in the opinion of the learned Judge the case of the appellant did not fall within the Exception I to section 300 Indian Penal Code 4. It is urged by learned counsel for the appellant that the story given by Mst. Andu at the stage of the enquiry cannot be believed to be true because a man who had hidden himself to see the wife indulging in sexual intercourse with his own brother cannot remain silent when Wajia had his first sexual intercourse with Mst. Andu. The learned Judge according to the appellant's counsel entered into the realm of conjecture when he observed in the judgment that it was possible that the accused might have fallen asleep and could not know about the first intercourse or it may be that he (accused) could not have been able to muster up courage at that time and the second intercourse had given him further provocation. From the record such a conjecture is not warranted at all. It does not stand to reason why a person if he were to detect the infidelity of his wife while indulging in sexual intercourse with Wajia, could have gone to sleep or could not muster up courage and waited till he committed intercourse for the second time. From the record such a conjecture is not warranted at all. It does not stand to reason why a person if he were to detect the infidelity of his wife while indulging in sexual intercourse with Wajia, could have gone to sleep or could not muster up courage and waited till he committed intercourse for the second time. If the entire statement of Mst Andu is perused then she in her cross-examination definitely stated that she had deposed before the committing court according to the advice given to her by the public prosecutor. We are, however, not prepared to accept the story given by Mst. Andu that Nathia did not go out of his house in search of a camel and kept himself concealed behind the kothi to see if Wajia came to have sexual intercourse with her. There is no warrant for the finding of the trial court that Nathia was inside the house when Wajia had his first intercourse with Mst. Andu and perhaps he could not detect because he might have gone to sleep or he could not muster up courage to take action against the lover of his wife. In this view of the matter, the plea taken by accused-appellant Nathia, that when he came back after finding out the camel in the night he found Wajia indulging in sexual intercourse with his wife and he lost all his control over himself and inflicted sword blows on the body of Wajia and also inflicted injuries to Mst. Andu, appears to be correct. The defence version, to us, is nearer to truth and in these circumstances we are left with no alternative but to hold that Nathia inflicted sword blows on the body of Wajia due to the sudden and grave provocation caused to him by the act of Wajia himself. 5. In view of this finding the crucial question that arises for our determination is whether the appellant could be convicted under section 302 I. P. C. 6. Exception I to section 300 Indian Penal Code brings the case of Nathia appellant under section 304 Part I. Culpable homicide is not murder if the offender, whilst 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. As observed above the provocation was given by Wajia and that the provocation was both sudden and grave. The crime therefore falls squarely within the purview of section 304 Part I. The intention of the accused to commit, murder of Wajia cannot however be ruled out because of the nature of the injuries caused to the deceased which in the opinion of the doctor were sufficient in the ordinary course of nature to cause death. There were 5 incised wounds and they were inflicted on the vital part of the body. Accused, therefore, can be held guilty for an offence under section 304 Part I of the Indian Penal Code. 7. The occurrence took place on 18th May, 1971 and Nathia was arrested on the 19th. Since then he is in custody. He has already undergone more than four years and ten months imprisonment. We feel that justice will be met if he is awarded a sentence equal to the one already undergone. 8. The result is that the appeal is partly allowed. The accused is acquitted of the charge under section 302 Indian Penal Code and the imprisonment for life awarded to him for that offence is set aside. He is however convicted for an offence under section 304 Part I of the Indian Penal Code and sentence already undergone is awarded to him. The conviction and sentence under section 324 Indian Penal Code are however maintained, but the sentence under this offence shall run concurrently to the sentence awarded under section 304 Part I of the Indian Penal Code. The accused-appellant is in jail. He shall be released forthwith if not required in any other case. *******