JUDGMENT : N.K. Das, J. - The Appellant is in appeal against his conviction u/s 302, Indian Penal Code sentencing him to undergo imprisonment for life for intentionally causing the death of the Subedar of the First Battalion of the Orissa Military Police, Charbatia on the 30th day of January, 1976 at about 6.15 a.m. 2. Prosecution case is that the deceased Subedar Prakash Chandra Choudhury was on official duty in the Guard Room in the second floor of A.R.C. office building at the relevant time. The Appellant was a Sepoy in the First Battalion of the Orissa Military Police at Charbatia. He was relieved of his guard duty in the first floor of the building and went to the second floor, He fired a shot from his 303 rifle (M.O. I) at the deceased which hit him on his back and pierced through resulting in instantaneous death. The motive for the commission of such offence is said to be the existing ill-feeling between the Appellant and the deceased. P.W. 5 was on waiting duty in the second floor. He ran and caught hold of the Appellant and raised hulla. P.Ws. 2, 3, 4, 6, 7 and 8 came to the spot on hearing the hulla of P.W. 5. P.W. 5 caught hold of the Appellant and snatched away the rifle. Thereafter, a telephone message was sent to the nearest police station. A station diary entry was made by the Officer-in-Charge of Choudwar Police Station (P.W. 14) went to the spot and recorded the first information from P.W. 1. He made inquest over the dead body and sent the same for post-mortem examination. He also examined witnesses at the spot and seized the rifle and the cartridge available as well as other materials from the spot. A confessional statement was recorded by P.W. 12. The rifle and the cartridge were sent for expert examination and the other materials having blood-stains were also sent for chemical examination. On completion of investigation, charge-sheet was submitted by P.W. 14 on 13-4-1976 for offence u/s 302, Indian Penal Code. 3. The Appellant has pleaded not guilty to the charge. A confessional statement was recorded by P.W. 12. The rifle and the cartridge were sent for expert examination and the other materials having blood-stains were also sent for chemical examination. On completion of investigation, charge-sheet was submitted by P.W. 14 on 13-4-1976 for offence u/s 302, Indian Penal Code. 3. The Appellant has pleaded not guilty to the charge. His case is that he did not intentionally fire the rifle to kill the deceased, but it was a case of accidental fire during a scuffle in course of which the bullet hit the wall of the room and he does not know how and under what circumstance the deceased died. His further defence is that after he was relieved of his duty, he went to the Guard Room. The deceased came there and when the Appellant saluted the deceased with the rifle, there was no response, but the deceased abused him in filthy language accusing that his wife was a prostitute. The deceased asked P.W. 5 to snatch away the rifle of the Appellant. When P.W. 5 attempted to snatch away the rifle there was a scuffle and in course of that there was accidental firing and the bullet hit the wall. 4. There is no dispute about the fact that by the injuries sustained by firing of the rifle, the death was instantaneous. From the evidence of the doctor as well as from the statement of P.W. 5, it is abundantly clear that the Subedar died of gun-shot injuries and the death was instantaneous. The doctor has also opined that the injuries could be caused by the 303 rifle (M.O. 1). From the post-mortem report Ext. 5 as well as the testimony of the doctor, it IS clear that there was one entrance wound on the back side of the deceased and also there was corresponding exit wound on the front side. The dress which the deceased had put on also contained the corresponding boles. There is no dispute about the fact that the deceased died in that room and at the spot immediately after the firing of M.O. I. Agreeing with the trial Court, we hold that the death of the Subedar was due to gun-shot. 5. P.W. 5 is the only eye-witness to the occurrence. Presence of P.W. 5 is also admitted by the Appellant in his statement recorded u/s 313, Code of Criminal Procedure. 5. P.W. 5 is the only eye-witness to the occurrence. Presence of P.W. 5 is also admitted by the Appellant in his statement recorded u/s 313, Code of Criminal Procedure. P.W. 5 has categorically stated that he has seen the Appellant firing the rifle from the back side of the Subedar and this resulted in the instantaneous death. He also stated that he caught hold of the Appellant and started shouting. From his testimony it appears that the other witnesses, namely, P.Ws. 2, 3, 4, 6, 7 and 8 came to the spot. All the aforesaid witnesses unanimously stated that P.W. 5 shouted that the Subedar was killed by the Appellant. Coming to the spot, they also found the Subedar lying dead and P.W. 5 trying to snatch a way the rifle from the hand of the Appellant. Ultimately, through the effort of P.Ws. 4 and 5, the rifle was taken away from the Appellant and they also took away the belt worn by the Appellant. P.W. 2 immediately informed the authorities and a telephone message was sent to the Police-Station. This fact has been corroborated by the testimony of the officers of the battalion as well as from the evidence of the Officer-in-charge of the Police Station. P.W. 14, the Officer-in-charge also immediately came to the spot. He also recorded the statement of the witnesses shortly after he reached the spot. P.W. 5 who is admittedly the only person present in the Guard Room where the occurrence took place has clearly stated that while the deceases Subedar was writing some thing in a register, the Appellant after being relieved of his duty came to the second floor with the rifle issued to him. The Appellant came and suddenly fired a shot from his rifle from the back side of the Subedar. He (P.W. 5) ran and caught hold of the Appellant. The Subedar fell down from the stool. He thereafter raised hulla. He has stated P.W. 4 came running to the spot. Both P.Ws. 4 and 5 snatched away the riffle from the hand of the Appellant. While he was balding the Appellant, P.Ws. 2, 3 and others came to the spot. The testimony of this witness has been amply corroborated by P.W. 4 who was first to reach the spot. 6. He has stated P.W. 4 came running to the spot. Both P.Ws. 4 and 5 snatched away the riffle from the hand of the Appellant. While he was balding the Appellant, P.Ws. 2, 3 and others came to the spot. The testimony of this witness has been amply corroborated by P.W. 4 who was first to reach the spot. 6. The plea of the Appellant is that there was a scuffle between the Appellant and P.W. 5 and during the scuffle the bullet was released from the rifle and hit the wall. The explanation given by the Appellant is that when he saluted the Subedar there was no response and he had put the rifle on the table, but at the instance of the Subedar. P.W. 5 wanted to snatch it away and at that time there was scuffle when there was accidental fire from the rifle. This fact has been denied by P.W. 5. On the other hand, it has been sufficiently established by the evidence of P.W. 5 and other witnesses who reached the spot immediately after the occurrence that after the firing of the rifle by the Appellant which resulted in the instantaneous death of the Subedar, P.W. 5 who was present that the spot raised hulla and tried to catch hold of the Appellant. At that time also P.W. 4 reached the spot and helped P.W. 5 in catching hold of the Appellant and snatching away the rifle. From their testimony, it also appears that the Appellant was saying that he would not leave the place and so there was no occasion of catching hold of him. Their evidence clearly establishes that there was an attempt by P.Ws. 4 and 5 to snatch a way the rifle and to take away the belt from the Appellant and at that time the Appellant resisted saying that he would not leave the place. It is thus clear that by the time of firing of the rifle which resulted the death of the deceased, there was no scuffle at all Whatever scuffle took place it was after the occurrence when P.Ws. 4 and 5 wanted to snatch away the rifle from the Appellant. Besides, there is no other material on record relating to the plea of scuffle taken by the Appellant. 4 and 5 wanted to snatch away the rifle from the Appellant. Besides, there is no other material on record relating to the plea of scuffle taken by the Appellant. It is argued by the learned Counsel for the Appellant that at the time of the scuffle there was accidental firing from the rifle and the bullet hit at the wall and by rebounding of the bullet the injuries sustained by the deceased might have been caused. The Appellant in his statement recorded u/s 313, Code of Criminal Procedure has stated that he cannot say how the Subedar died. There is no evidence on record to show that the bullet first of all hit against the wall and then rebounded and bit the deceased. The Expert examined in this case has clearly testified that the injuries said to have been sustained by the deceased cannot be possible by a bullet which hit the wall and on rebounding hit the deceased. On the other hand, he has clearly stated that the firing was from the back side of the deceased and the bullet pierced through his body and went out through the exit injury found and thereafter the bullet would have struck against the wall. Much reliance has been placed on the testimony of P.W. 4 who say that when he came to the room he found a bullet mark on the wall. Even the existence of the bullet mark on the wall does not establish the defence plea in face of the evidence of the doctor the ballistic expert and P.W. 5 who was admittedly present at the spot. The plea of the injuries being sustained by the deceased due to rebounding of the bullet after striking against the wall is not acceptable and there is no material in support of his contention. In view of the materials discussed above we hold that the defence plea of scuffle and rebounding of the bullet after hitting against the wall cannot be accepted and the prosecution has proved beyond reasonable doubt that the Appellant fired the bullet from the back side of the Subedar which resulted in his death. 7. The extra-judicial confession relied on by the prosecution has been tightly discarded by the trial Court. Prosecution has relied on the evidence of P.Ws. 2, 3, 4, 5 and 7 relating to the extra-judicial confession. 7. The extra-judicial confession relied on by the prosecution has been tightly discarded by the trial Court. Prosecution has relied on the evidence of P.Ws. 2, 3, 4, 5 and 7 relating to the extra-judicial confession. After scrutinising the evidence of these witnesses, we are in agreement with the finding of the trial Court that the evidence is not consistent as to what the Appellant stated when these witnesses were at the spot. Moreover, their evidence is tainted with some improbability as to what the Appellant stated to them. 8. The trial Court has accepted the confessional statement. We cannot persuade ourselves to agree with the finding of the trial Court on this point. P.W. 12 is the Magistrate who recorded the confessional statement and Ext. 7 is the statement recorded by him. From Ext. 7, it appears that the Appellant was all along in police custody. The learned Magistrate has stated that he had kept the Appellant for reflection in charge of his peon and by mistake he has mentioned in the record that he was remanded to the police custody. This statement of P.W. 12 has been accepted by the trial Court on the ground that the Appellant has stated that he was kept in the custody of a peon. This fact is not correct. After examining the statement of P.W. 12 as well as the contents of Ext. 7 we find that there is no material on record to show that the Appellant was at any time kept in charge of a peon before recording of his confessional statement. It would thus appear that the Petitioner was all along in police custody just before recording of his confessional statement. It also transpires from the testimony of P.W. 12 that he did not give proper caution to the Appellant before recording of his statement. He has admitted that he had not told the Appellant that he Appellant was not bound to make confessional statement. He also admits that he did not verify from the Appellant as to whether the Appellant had been influenced by any police officer to make the confessional statement. The Appellant in his statement u/s 313, Code of Criminal Procedure has stated that he was never put in charge of any peon. From the aforesaid circumstances it is not safe to rely on the confessional statement Ext. 7. 9. The Appellant in his statement u/s 313, Code of Criminal Procedure has stated that he was never put in charge of any peon. From the aforesaid circumstances it is not safe to rely on the confessional statement Ext. 7. 9. The Appellant has taken the plea in his statement u/s 313, Code of Criminal Procedure that when he came to the Guard Room the Subedar abused him. This fact has been suggested to all the prosecution witnesses and P.W. 7 has admitted that when he came immediately after the occurrence to the spot the Appellant complained before him that the Subedar abused the Appellant. Besides the above fact, the admitted position is that there was ill-feeling between the Appellant and the deceased. From the evidence of P.W. 11, the Reserve Sub-Inspector of the Battalion, it appears that on 7-11-1975 the deceased had made a report against the Appellant (Ext. 6) and had given a wrong picture, about the en try of one Sepoy Joshi into the house of the Appellant. The trial Court has accepted the evidence of P.W. 1 in this regard and we are also in agreement with the view of the trial Court. The Appellant has also stated in his statement recorded u/s 313, Code of Criminal Procedure that the deceased had given a report against him and according to the Appellant the report was false it is also asserted on behalf of the Appellant that the deceased had made a false propaganda affecting the moral character of the Appellant and the Appellant had made a report against the deceased and the deceased had been censured. This statement of the Appellant is supported by the evidence of P.W. 11. From the evidence of P.W. 7, the Assistant Commandant, it appears that on the report submitted by the Appellant, a charge (Ext. 2) was framed against the Appellant in a departmental proceeding and the allegation in that proceeding related to an incident connecting one R.L. Joshi and the Appellant and the charge was for gross misconduct of the Appellant. P.W. 7 admittedly had been appointed as the enquiring officer and the proceeding was pending at that time. It was at the stage of adducing evidence for defence. The Appellant was admittedly arrested under orders of the Commandant relating to that proceeding. P.W. 7 admittedly had been appointed as the enquiring officer and the proceeding was pending at that time. It was at the stage of adducing evidence for defence. The Appellant was admittedly arrested under orders of the Commandant relating to that proceeding. The Appellant had been suspended with effect from 7-11-1975 and had been reinstated on the 30th of January, 1976, which is the date of occurrence. All these facts would show that there was constant ill-feeling between the Appellant and the deceased and at the instance of the deceased all this unhappy relation had developed. The Deputy Commandant of the Battalion was also admittedly related to the deceased. The Appellant belongs to Madhya Pradesh. He was suspended from service and had been arrested. Admittedly, the order of arrest had been stayed and he was reinstated in service on the date of occurrence. He was acting as a Sepoy in a Military Police Battalion. Admittedly, there were allegations made by the deceased relating to the wife of the Appellant. It is contended by the Appellant that when he came to the Guard Room at the time of the occurrence be was abused by the deceased stating that he was the husband of a prostitute. The fact that there was some abuse by the deceased at the moment is borne out from the evidence of P.W. 7. He states that immediately after the occurrence when he came to the spot, the Appellant complained before him that the deceased abused him. There is nothing to disbelieve the aforesaid statement of P.W. 7. On the other hand the other subordinate employees of the Battalion have tried to suppress this fact inasmuch as P.W. 1 who was the head of the Battalion was a relation of the deceased So, naturally this fact has been suppressed by the other subordinate officers, namely, P.Ws. 2 to 8. From the aforesaid evidence, it is dear that some abuses were hurled at the Appellant immediately before the occurrence. The time was early morning when the Appellant who was none but a Sepoy reinstated that day had come from night duty with the rifle to place the same in the Guard Room when abuses were hurled at the Appellant. From these circumstances, a reasonable inference can be drawn that at that time the Appellant lost his self-control and fired the rifle at the deceased. 10. From these circumstances, a reasonable inference can be drawn that at that time the Appellant lost his self-control and fired the rifle at the deceased. 10. The principle of grave and sudden provocation has been laid down in K.M. Nanavati Vs. State of Maharashtra. In paragraph 85 of the decision, the principle under Indian law has been enumerated as follows: (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. (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. The impact of provocation on human frailty is to be judged in the context of the social position and environments of the person concerned. The restraint which is generally shown by sophisticated persons used to modern living is hardly to be expected in the case of a villager See Atma Ram v. The State 1967 Crl. L.J. 1697. Provocation is an external stimulus which can be objectively gauged but loss of self-control is a subjective phenomenon and can be inferred from the surrounding Circumstances the manner in which the accused reacted to the circumstances and accused's own description of his mind which can be verified with reference to relevant objective facts by the Court imaginatively reconstructing the psychological situation in which the accused found himself See In Re Vadivel Padyachi 1972 Crl L.J. 1641. 11. 11. Judging the facts and circumstances of the case, the class to which the Appellant belongs, the immediate unfortunate situation to which the Appellant had been placed and the provocation given by the deceased, it can be very reasonably inferred that the Appellant lost his self-control and there was also no time-lag for premeditation or for cooling down. We, therefore, hold that the Appellant fired the rifle in a heat of passion and the offence committed by the Appellant would come under Exception-1 to Section 300, Indian Penal Code. The offence thus comes under the First Part of Section 304, Indian Penal Code. 12. In the result, the appeal is allowed in part. The conviction of the Appellant u/s 302, Indian Penal Code and the sentence thereunder are set aside. The Appellant is convicted under the First Part of Section 304, Indian Penal Code and he is directed to undergo rigorous imprisonment for seven years. R.N. Misra, J. 13. I agree. Final Result : Allowed