Judgement TIPNIS, J :- Criminal Appeal No. 920 of 85 is filed by the State for enhancement of sentence awarded by the learned Sessions Judge, Kolhapur to respondent sentencing the respondent to rigorous imprisonment for five years and a fine of Rs. 1000/- in default rigorous imprisonment for six months for offence under S.304 Part I of the Penal Code. Criminal Appeal No. 921 of 85 is filed by the State against the judgement and order of the learned Sessions Judge, Kolhapur, acquitting the accused tinder S.302 of the Penal Code. 2. Prosecution case shortly stated is that the accused who is popularly known as Vishwanath Maharat was in service at Kolhapur Sugar Factory and had religious inclination. After retirement from service, he started living in his own house at Kasaba Bavada. Kolhapur along with his wife and children. He started wearing clothes of pink colour and used to give religious discourses and sermons to the people. Deceased Ratnamala, who was a woman of rather loose character came into contact with the accused and soon became his disciple. She started visiting the house of the accused often. Son of the accused naturally did not like this and showed has resentment. It appears that the accused ultimately left his family and along with Ratnamala the deceased, went on pilgrimage for a period of three months. About a fortnight before the incident, deceased Ratnamala and accused returned from pilgrimage to Kolhapur. First they went to Ratnamala's aunt and thereafter they rented out a room in the chawl of P.W. 5 Pandurang Dhobale in Chavan colony. Accused and Ratnamala started residing together. Both of them were using clothes of pink colour. Accused used to carry a cloth bag and also trishul. On the day of the incident, Ratnamala and accused left their room in the morning at about 7.30 a.m. and after collecting alms returned to their room. They took their food at about 1.00 a.m. P.W. 3 Sangita was residing in the room immediately next to the room of the accused. Sangita after taking her lunch at about 11 a.m. took afternoon nap. At about 2.30 p.m. the accused is alleged to have come in front of her door and called her by name. Sangita awoke from her sleep, unlatched the door and she went towards the room of the accused. The door was half closed. Sangita after taking her lunch at about 11 a.m. took afternoon nap. At about 2.30 p.m. the accused is alleged to have come in front of her door and called her by name. Sangita awoke from her sleep, unlatched the door and she went towards the room of the accused. The door was half closed. She pushed the door and she saw that the accused was reading 'pothi'. The accused enquired of her whether her husband was in the house. She replied in the negative. The accused after lifting the cost in of gunny bag showed the dead body of Ratnamala lying on the floor in a pool of blood and told her that he has committed Ratnamala's murder. She was afraid. She came back to her room, lucked the door and immediately went to her parents' place. P.W. 5 Panduring Dhobttle the owner of the chawl returned to his room in the same chawl from his floor mill for taking lunch. After lunch he was taking his usual afternoon nap and at about 1.30 p.m. he was about to leave for his flour mill, at that time he heard loud shouts of a female "mother I am dead". The voice was coming from the room of the accused. He suspected some foul play and therefore went to the house of Dwarkabai Tivale, aunt of Ratnamala, at whose recommendation he had let the room to accused and Ratnamala. Dwarkabai and his son-in-law Baburao and the landlord returned to the room of the accused. They noticed that it was latched from inside. They knocked the door and requested the accused to come out. The accused is alleged to have replied that he would not open the door and that he has committed Ratnamala's murder. He insisted that he would not open the door unless police are called. P.W. 5 Pandurang Dhobale started going towards Kalamba Octroi naka, met one Gujanan Patil and requested him to give a telephonic message to the police at Juna Rajwada Police Station. Vishnu Jadavekar was assisting police head constable Bhosale, who was in-charge of the police station. The phone massage was received by the police station and necessary note of the same was taken in the station diary. Thereafter, police head constable with police constable come to Chavan colony in a police van. Police asked the accused to Come out. Vishnu Jadavekar was assisting police head constable Bhosale, who was in-charge of the police station. The phone massage was received by the police station and necessary note of the same was taken in the station diary. Thereafter, police head constable with police constable come to Chavan colony in a police van. Police asked the accused to Come out. The accused thereafter removed the latch from inside and opened the door. It was noticed that the accused was the only parson in the room. The accused lifted the curtain and pointed out Ratnamala's dead body. She was lying in a pool of blood. There were injuries on the left side of her head, Blood stains were also found in the clothes and on the person of the accused. Trishul was lying in the room which was also stained with blood. In the meantime, Police Inspector Jadhav came to the spot. Inquest panchanama and the panchanama of the scene of offence was drawn. Accused was arrested and after completion of the investigation the accused was charged and tried before the learned Sessions Judge at Kolhapur in Sessions Case No. 90 of 84 for an offence under S.302 of the Penal Code for committing murder of deceased Ratnamala, It may be noticed that during the investigation. Special Judicial Magistrate. Shri Rane, recorded the confession of the accused on 12th Oct. 1984. 3. During the trial, the accused admitted his guilt at every stage. However, the learned Sessions Judge did not merely accept the plea of guilt by the accused but directed the prosecution to lead evidence. 4. As stated earlier, the accused specifically contended that he has committed murder. He in fact at Ex. 43 filed a written statement wherein he has stated that Ratnamala used to narrate about her past bad conduct and accused used to guide her from time to time by religious discourses for mental peace of Ratnamala. Both of them went on a pilgrimage for a period of 3 to 3½ months. On the date of the incident, after taking food together, the accused was reading Dnyaneshwari, Ratnamala came in front of the accused. She again narrated the past sins and expressed that she would not be freed unless she died at the hands of her guru. The accused stated that Ratnamala urged him that he should kill her so that her soul would be free. She again narrated the past sins and expressed that she would not be freed unless she died at the hands of her guru. The accused stated that Ratnamala urged him that he should kill her so that her soul would be free. The accused told her that it is not proper that he should kill her that it is not proper that he should kill her but she should pray God so that she would get peace of mind. Despite this, Ratnamala brought trishul. She stopped the accused from reading Dnyaneshwari. The accused got annoyed and told her not to act accordingly. Even then she vehemently stated urging the accused to kill her. She made gestures indicating that the accused was impotent. She also abused him by staying that he was a coward and unable to kill her. The accused has further stated that due to this conduct, he got enraged beyond limit. He stood in front of her but despite his anger the deceased Ratnamala did not stop her abuses and obscene gestures. She became uncontrollable and she gave trishul in the hands of the accused and urged him to kill her. The accused has further stated that due to her obscene abuse and obscene gestures and due to her obstruction in his reading of Dnyaneshwari, he also got enraged beyond limits. With a view to push her away, the accused raised trishul but he became uncontrollable and the trishul hit Ratnamala. With a view that she should go away, he assaulted Ratnamala with trishul and in that state of excitement. he was unable to understand what happened. After sometime, he saw Ratnamala in a pool of blood. He felt very sorry for whatever had happened and he started praying God and reading Dnyaneshwari for peace of mind. Thereafter, police took him away. Similar is the narration before the Special Executive Magistrate. Though the confession recorded by the Magistrate does not refer to any abuses or obscene gestures on the part of Ratnamala, in the confession, the accused has stated that while reading Dnyaneshwar, Ratnamala brought his trishul and told him that he cannot live without killing her. She expressed her desire and expectation that with a view to free her from the sins committed by her till then, the accused should kill her. She expressed her desire and expectation that with a view to free her from the sins committed by her till then, the accused should kill her. Accused has stated that he could not muster courage to kill her even when he was holding trishul. However, deceased Ratnamala was gesturing by hands and insisting that he should kill her. Accused thereafter stated that he became uncontrollable and he gave two blows on the left side of her head by trishul, again he gave two blows on the right side. Ratnamala dropped in the pool of blood and died. 5. The learned Session Judge, Kolhapur on the basis of the statement of the accused which, it appears the learned Judge has accepted fully, hits observed as follows : "In the first place, the present incident is covered under exception V to S.300 of the Penal Code and if at all the written statement of the accused is to be accepted it will fall under Exception I to S.300 of the Penal Code." The learned Judge further observed that taking into consideration the confession of the accused together with other prosecution evidence on record, in the first place there was absolutely no motive for the accused to commit the crime. Secondly the deceased Ratnamala was insisting that her life should come to an end only at the hands of the accused so that her soul will get eternal peace and when she further abused filthily to the accused, it is evident that accused lost his temper and also get enraged and assaulted her." "Under these Circumstances" observed the learned Sessions Judge "that accused has committed an offence under S.304. Part I of the Penal Code." The learned Sessions Judge ultimately held that though there was no motive or intention while committing the offence in question still the evidence led by the prosecution is sufficient to warrant a conclusion that the accused assaulted deceased Ratnamala by trishul, might be at her instance, and hence the accused has committed an offence punishable under S.304, Part I of the Penal Code. As regards sentence, the learned Judge has observed as under : "I do not know the previous record but at least to my mind it appears that this must be the first case of its kind where right from the beginning the accused has admitted his guilt. As regards sentence, the learned Judge has observed as under : "I do not know the previous record but at least to my mind it appears that this must be the first case of its kind where right from the beginning the accused has admitted his guilt. However, in order to find out truth the accused was her convicted after his guilty plea was recorded but the prosecution was called upon to adduce evidence in support of its case. No doubt the conduct of the accused deserves to be taken into consideration right from the beginning till today. Relying on the ruling recorded in AIR 1958 Pat 190 : (1958 Cri LJ 548), where their Lordships came to the conclusion that the offence was covered under S.304. Part I of the Penal Code and awarded sentence of five years. I sincerely think that in the interest of justice that such sentence would be sufficient. Moreover, it cannot be forgotten that the accused is repenting for his acts." 6. As stated earlier the State has preferred these two appeals one against the order of acquittal under S.302 of the Penal Code and the other for enhancement of sentence for an offence under S.304, Part I. 7. We heard Shri Patil, the learned Assistant. Public Prosecutor for the State in support of both these appeals, as also Shri Menghane, the learned advocate appointed for the accused-respondent in both these appeals. With the assistance of both the Counsel. we have gone through the entire record in the light, of submissions made by rival parties and upon consideration of the entire record, we have to hold that the judgement and order of the learned Sessions Judge, Kolhapur holding that the accused is guilty of an offence under S.304, Part I cannot he upheld. We are of the clear opinion that the evidence on record clearly establishes an offence of murder against the accused and the accused has to be convicted under S.302 of the Penal Code. 8. As already stated, the accused in his statement to the Court as also in his confessional statement recorded by the Magistrate has clearly admitted that he assaulted Ratnamala by trishul and Ratnamala died due to those injuries. 8. As already stated, the accused in his statement to the Court as also in his confessional statement recorded by the Magistrate has clearly admitted that he assaulted Ratnamala by trishul and Ratnamala died due to those injuries. Apart from this evidence, evidence of P.W. 3 Sangita, P.W. 5 Pandurang, P.W. 6 Dwarkabai also very clearly shows that only deceased Ratnamala and the accused were in the room at the relevant time. Ratnamala was found dead in a pool of blood lying on the ground inside the room. Blood stained trishul was also found lying inside the room and accused who was the only living person inside the room immediately stated to these witnesses that he had murdered Ratnamala. The evidence on record very clearly proves that it is the accused and none else who has assaulted Ratnamala which has resulted into her death. The medical evidence on record also clearly, establishes the fact of homicidal death of Ratnamala. Therefore, the only short question which remains to be considered, is whether the statement of the accused has to be accepted in its entirety and as to whether even then the case of the accused falls in any of the exceptions mentioned in S.300 of the Indian Penal Code. 9. Firstly, it. is difficult to accept the statement of the accused as depicting the true situation. Evidence of P.W. 5 Pandurang clearly shows that at the time of the incident he heard the shouts of female coming from the room of the accused "mother I am dead". This clearly shows that Ratnamala was crying loudly when she was being assaulted. This evidence is inconsistent with the story given out by the accused that it is at the behest and upon the urging of deceased Ratnamala that he killed her. Apart from that even assuming that. what the accused has stated which we have reproduced in 'detail' in earlier part of the judgement, is true, we are of the opinion that even then the case will not fall in any of the exceptions mentioned in S.300 of the Indian Penal Code. For application of the first exception, the offender while deprived of the power of self control by grave and sudden provocation should cause the bath of a person who grave the provocation. For application of the first exception, the offender while deprived of the power of self control by grave and sudden provocation should cause the bath of a person who grave the provocation. Even accepting the story of the accused that Ratnamala obstructed his daily routine of reading Dnyaneshwari or that she abused him, called him impotent, and also made obscene gestures inside the room, when there was none else. We are afraid, it cannot be held that there was any grave or sudden provocation sufficient for the accused to be deprived of his power of self-control. In the facts and circumstances of the case, it is not possible to hold that the case falls written the first exception to S.300 of Penal Code. 10. Exception V to S.300 states that culpable homicide is not murder when the person whose death is caused, being above the age of 18 years suffered death or takes the risk of death with his own consent. Surely, the Vth exception contemplates altogether a different situation. In the facts of this case as stated earlier, the fact that P.W. 5 Pandurang heard shouts from the deceased Ratnamala while she was being assaulted negatives the theory that she was being assaulted negatives the theory that she was killed at her own urging or with her own urging, or with her own consent. We are satisfied in the facts and circumstances of this case that even taking not consideration whatever the accused has stated, it is not possible to hold that the case falls within Vth exception to S.300 of the Penal Code. 11. In this view of the matter, it is impossible to uphold the decision of the learned Sessions Judge that the accused is guilty of an offence under S.304 Part I and not under S.302 of the Penal Code. 12. Accordingly we allow the appeal of the State against the order of acquittal. We set aside the judgement and order of the learned Sessions Judge, Kolhapur in Sessions Case No. 90 of 84 convicting the accused under S.304 Part I and sentencing him to suffer rigorous imprisonment for a period of five years and fine of Rs. 1,000/- in default further imprisonment for six months and instead convict the accused for an offence under S.302 of the Penal Code and sentence him to suffer imprisonment for life. 13. 1,000/- in default further imprisonment for six months and instead convict the accused for an offence under S.302 of the Penal Code and sentence him to suffer imprisonment for life. 13. In view of the fact that the appeal of the State against the order of acquittal is allowed, the appeal for enhancement of sentence does not survive and the same is disposed of accordingly. It is made period of imprisonment already undergone by the accused will be taken into consideration while computing the period imprisonment to which the accused is sentenced. Order accordingly.