JUDGMENT : ( 1. ) APPELLANT Ramakant, a young boy aged 21 years, stands convicted under section 302, Indian Penal Code, for causing murder of his wife pushpabai, about 18 years of age. ( 2. ) A business magnate Shri Kantilal Tolia is the proprietor of Tolia Tiles Factory at Indore-Khandwa Road. Within the premises, he had some rooms (Kholis) where employees coming from outside Khandwa town were permitted to reside. One of such employees was the appellant. He was then recently married and by virtue of his employment in the said tiles factory, was permitted to live in one of those rooms with his young wife Pushpabai. The room so allotted to the appellant for his residence just adjoined the building where Kantilal Tolia used to hold his office. Rumours spread that kantilal Tolia would summon young lady workers to his office and with the power and money that he had, would make them succumb to his desires. It has been the case of the prosecution that Kamalabai (P. W. 6) was employed by Shri Kantilal Tolia to. persuade pushpabai to join Kantilal Tolia and satisfy his sexual desires. Pushpabai at first hesitated but ultimately when on 9-5-1982 the appellant had gone out of Khandwa for some job, Kamalabai succeeded in her evil design and Pushpabai was made to go to the office of Kantilal Tolia where Kantilal Tolia committed adultery with Pushpabai. On 11-5-1982 the appellant returned. Pushpabai, however, remained quiet and made no complaint either against Kamalabai or against Kantilal Tolia. Karansingh (P. W. 2) and labhkunwar (P. W. 5) had noticed Pushpabai going to the office of Kantilal Tolia and they are alleged to have given this information to the appellant. This unsettled the appellant completely. He decided to immediately leave the room and service and quit khandwa. He even took out his luggage and also asked the deceased to be ready to leave Khandwa. Before, however, he finally left the place, he went to the factory office and had a word with Kantilal Tolia on the subject. Kantilal Tolia, of course, denied the allegation and immediately asked the appellant to quit the premises. Appellant came back to his room where he found his wife Pushpabai standing in the open space in front of the house. Kantilal Tolia, of course, denied the allegation and immediately asked the appellant to quit the premises. Appellant came back to his room where he found his wife Pushpabai standing in the open space in front of the house. The prosecution case further is that finding a bottle of kerosene oil there, he poured it on Pushpabai and set fire to her. Pushpabai was then removed to the hospital where her dying declaration was recorded, vide Ex. P/8 by Naib Tahsildar radha Krishna Verma (P. W. 16) at about 7. 15 P. M. She ultimately succumbed to the burn injuries. When after due investigation, the challan was filed, the Court accepted the prosecution story and relying upon the dying declaration held the appellant guilty of intentionally causing death of his wife Pushpabai. On these findings, the appellant has been convicted, as aforesaid, and has been sentenced to imprisonment for life. ( 3. ) PUSHPABAI died of burn injuries was not even denied by the appellant during his examination under section 313, Criminal Procedure Code. Although he denied to have caused those injuries, the prosecution has established beyond doubt that it is the appellant who is guilty of setting fire to his wife Pushpabai. Reference in this regard may be made to the dying declaration (Ex. P/8) made by Pushpabai and recorded by Naib tahsildar Radha Krishna Verma (P. W. 16 ). His deposition would show that he had taken all precautions in that behalf and had ascertained that Pushpabai was in a position to make a coherent statement. The statement (Ex. P/8) so recorded does not bear her signature. This has been explained by the witness stating that her fingers were also burnt. A look at the dying declaration so recorded by this witness would show that the deceased had made a very clear statement as to the cause of her death. She has given all details in answer to the questions that were put to her. The certificate of the doctor annexed to the statement also shows that she was in full senses when the statement began and when it ended. There is no reason why the statement of the Naib Tahsildar, an absolutely independent witness, be not accepted. She has given all details in answer to the questions that were put to her. The certificate of the doctor annexed to the statement also shows that she was in full senses when the statement began and when it ended. There is no reason why the statement of the Naib Tahsildar, an absolutely independent witness, be not accepted. The testimony of this witness is entitled to all credit and must be accepted despite the statement of Kamalabai (P. W. 6)who has tried to shield the appellant and has stated that at the time of incident the appellant was seen by her from behind the house. She is a woman who at the relevant time was herself being prosecuted on a charge under section 376, Indian Penal Code. The trial Court rightly ignored her testimony. The law does permit an inference of guilt against an accused even on a charge of murder on the sole testimony of dying declaration provided it is coherent and trustworthy. This is how the Supreme Court, in state of Assam vs. Mufizuddin Ahmed AIR 1983 SC 274 , has expressed itself on the subject : "there can be conviction on the basis of dying declaration and it is not at all necessary to have a corroboration provided the Court is Satisfied that the dying declaration is a truthful dying declaration and not vitiated in any other manner. " Accepting the dying declaration (Ex. P/8) and relying upon it, we hold the appellant guilty of causing death of his wife Pushpabai by pouring kerosene oil and then setting fire to her. ( 4. ) SHRI Rajendra Singh, learned counsel for the appellant, strenuously argued that under the circumstances of the case, the appellant is entitled to the benefit under the First Exception to section 300, Indian Penal Code and can be held guilty only of culpable homicide not amounting to murder. It is true that the appellant has denied the commission of the crime and has thus lied as to the circumstances under which the incident took place, yet we shall not punish him for such lies. The circumstances favouring him will have to be considered to see if the benefit as claimed on his behalf at this stage can be made available to him. The circumstances favouring him will have to be considered to see if the benefit as claimed on his behalf at this stage can be made available to him. However, since it is the appellant who is seeking to take shelter under the exception, it is for him to prove the existence of circumstances which may bring his case within that exception. The Court shall first presume the absence of such circumstances and if the appellant accused fails to prove the circumstances entitling him to the benefit of that exception, the Court shall be precluded from speculating and from giving him any benefit of doubt on the basis of such speculation. (See: Abdul Majid vs. State of M. P. , 1963 MPLJ 592 =air 1963 M. P. 364.) ( 5. ) FIRST Exception to section 300, Indian Penal Code says that "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. " In order, therefore, to attract this provision, the accused has to establish deprivation of power of self-control resulting from provocation which was grave and sudden. The death must be the consequence of such provocation, be it of the person who caused the provocation or of any other person by mistake or accident. As pointed out in Abdul Majids case (supra) provocative incident is one of the three elements of defence of grave and sudden provocation, the other two being the derprivation of the power of self-control and the causing of death under such provocation. Further, these circumstances must be so related to each other, particularly in point of time, so that there was no time for the passion to cool and the inference of deliberation or design was excluded. In K. M. Nanavati vs. State of maharashtra, AIR 1962 SC 605 , the Supreme Court citing with approval R. vs. Duffy, 1949-1 All ER 932, stated the law in this regard as under :- "that 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. " "is there any standard of a reasonable man for the application of the doctrine of grave and sudden provocation ? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values, etc. ; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilisation. It is neither possible nor desirable to lay down any standard with precision; it is for the Court to decide in each case, having regard to the relevant circumstances. . . . . . . . " On analysing the law on the subject and after referring to the decision in Lee Chun-Chuen vs. V. Reginam, 1962 All ER 73, approving the dictum of law in A G. of Ceylon vs. Parers, 1953 AC 200 and also to Nanavatis case (supra) a Division Bench of Kerala high Court, in Madhavan vs. State of Kerala, AIR 1966 Ker. 258 , summed up the law prevailing in India, relevant to the present enquiry, thus : " (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. " ( 6. ) CASES are not rare when this Exception was called into aid where the accused was the husband and the victim was the wife or vice versa. " ( 6. ) CASES are not rare when this Exception was called into aid where the accused was the husband and the victim was the wife or vice versa. In Daulatrao Tularao vs. State of M. P. , 1962 MPLJ 333, it was observed that no hard and fast rule can be laid down regarding the effect of the wifes word on the mind of a jealous husband. It was said that while it is difficult to make an analysis of the effect on a mind which is already abnormal and high strung, two elements are always found in such cases. The first one is great surprise, in other words, speech or conduct on the part of the wife that has altogether been unexpected. The second is moral revulsion which prompts him to acts of violence which he would not have thought of in a normal state of mind. In such cases because of the peculiar feature of continuous association under one roof as husband and wife, one may not take into consideration only the event which took place immediately before the incident resulting in death. The whole chapter of the deceaseds wicked conduct must be taken into consideration and not an isolated incident. ( 7. ) AT times silence proves more provocative than the speech. The gestures work as catalytic agents. Continued silence intensifies the provocation and the person provoked then ultimately reaches a point where the provocation bursts out in violence. The immediate cause is supplied by some act, gesture or even slight expression of a few words by the person causing the provocation. How and to what extent such silence and gestures may react on a given mind will not only depend upon the circumstances of the case but shall also depend upon the mental make up of the person provoked. It will, therefore, be difficult to lay down any rule of general application in this behalf. In the present case, the evidence of such provocation which has been relied upon by the learned counsel for the appellant, may be found only in the dying declaration (Ex. P/8)made by Pushpabai herself. She has stated in her dying declaration that even prior to the date of incident she had gone to Seth (Kantilal Tolia) thrice. However, she concealed the fact of making these visits to Seth from her husband. P/8)made by Pushpabai herself. She has stated in her dying declaration that even prior to the date of incident she had gone to Seth (Kantilal Tolia) thrice. However, she concealed the fact of making these visits to Seth from her husband. According to her, she was raped by the Seth but then this fact also she concealed from her husband, the appellant she stated that he did not know of her being so raped. Acording to her, it is Karan (P. W. 2) who informed her husband about her visit to Seths office whereupon the appellant rebuked her and asked her to go to Ganesh Talaiya. She started preparing ganesh Talaiya. It is thereafter that, according to her, the appellant was summoned by the Seth, and on return set fir to Pushpabai. She also stated that prior to the incident her relations with her husband were cordial and before actual setting of the fire she was only rebuked. From this narration the picture that emerges out is that not only she did not protest against her being summoned by the Seth, but even concealed this fact from her husband, the appellant. She visited Seth in absence of her husband, succumbed to Seths sexual desires and even then did not tell any thing about it to the appellant on his return. The appellant came to know of it from other sources but the deceased continued to remain silent. This caused provocation resulting in rebukes. She was asked to leave the appellant. However, later when his protest in mis regard resulted in immediate termination of his employment and he was asked to quit the factory premises, the provocation caused by the wife aggravated. On return he found his wife still standing in front of his quarter. All his belongings were taken out of the quarter. He found a bottle of kerosene oil in that luggage. The provocation caused by this in that luggage. The provocation caused by his wifes (Pushpabais) conduct in the past had till then become grave when the same had resulted in termination of his service and ouster from his quarter. His wife Pushpabai even then remained only a silent spectator without expressing any sorry or repentance. It is these circumstances under which the appellant set fire to his wife Pushpabai. His wife Pushpabai even then remained only a silent spectator without expressing any sorry or repentance. It is these circumstances under which the appellant set fire to his wife Pushpabai. The provocation caused under these circumstances must be held to be not only grave but also sudden within the meaning of First Exception to section 300, Indian Penal Code, and the appellant must be given the benefit of that exception. Merely because the appellant did not react immediately when he was communicated the act of infidelity of his wife but waited until the complaint against it by him to his employer resulted in termination of his service, the appellant cannot be denied the benefit of this Exception. In Balku vs. Emperor, AIR 1938 All 532, accused who had seen the deceased committing adultery with his wife in a close room through a chink, instead of becoming violent, came back and lay on a cot. The deceased after completing the act came and sat on the same cot dozing. It was, thereafter that the accused in that case, caused death of the adulterer. The learned Judges observed that then Budhu (the deceased) came into intimate contact with the accused by lying beside him on the cot, this must have worked further on the mind of the accused and he must have reflected that "this man now lying beside me had been dishonouring me a few minutes ago. " The Provocation under the circumstances was held to be both grave and sudden. In the present case also, on return from the office of his employer, when the appellant found his wife standing in front of the house, he must have thought that it is she who was responsible not only for injury to his reputation but also for the loss of the job. The whole unfortunate affair should be looked at as one prolonged agony on the part of the appellant which must have been prying upon his mind and eventually led to the unfortunate incident. We are, therefore, of opinion that the retaliation by the appellant resulted from the grave and sudden provocation caused by Pushpabai. The whole unfortunate affair should be looked at as one prolonged agony on the part of the appellant which must have been prying upon his mind and eventually led to the unfortunate incident. We are, therefore, of opinion that the retaliation by the appellant resulted from the grave and sudden provocation caused by Pushpabai. We are further of opinion that pouring of kerosene oil from out of a bottle found handy at the moment and then setting fire cannot be said to be so grossly disproportionate to the provocation as would show that the provocation was not the primary cause of retaliation but only a pretext for it. Even in the dying declaration (Ex. P/8) the deceased had not words to speak against the appellant who, according to her, was not at fault. The appellant, therefore, is entitled to protection under the Exception 1 to section 300, indian Penal Code. He is, therefore, liable to be convicted under Part I of section 304, indian Penal Code. ( 8. ) FOR the aforesaid reasons, we set aside the appellants conviction and sentence under section 302, Indian Penal Code and instead convict him under Part I of section 304 ibid. A sentence of rigorous imprisonment for a period of seven years shall meet the ends of justice. We sentence the appellant accordingly to undergo seven years rigorous imprisonment. Order accordingly.