JUDGMENT (ORAL) Vishnu Sahai, J. - Admit. 2. Mr. T.E. Mane, Counsel for the Appellant urges that he is pressing this Appeal only on the quantum of sentence and consequently the same may be disposed of finally by me today. Mrs. S.I. Pingulkar, learned Additional Public Prosecutor for the State of Maharashtra has no objection. Accordingly, I am disposing of this Appeal forthwith. 3. The Appellant aggrieved by the judgment and order dated 28th September, 1995 passed by the Additional Sessions Judge, Solapur in Sessions Case No. 11 of 1995 convicting and sentencing him to undergo 5 years R.I. under Section 304 Part II of the Indian Penal Code has preferred the present Appeal. 4. There arc two deceased in the instant case, viz., Chhabubai, the wife of the Appel1antand her paramour Pintya@ Shrikarit, the younger brother of P.W. 9-Mahadev. They are alleged to have been done to death at about 7.00 a.m. on 5-8-1994 inside the Grocery Shop of the deceased Pintya @ Shrikant. 5. The prosecution case is that on the aforesaid date and time one Danaji Deshmukh (not examined) came and told Mahadev that the Appellant had committed the murder of Pintya @ Shrikant. On that Mahadev rushed to the grocery shop of Pintya alias Shrikant and found that the shop was chained from outside and the Appellant was standing there with an axe. When Mahadev tried to unchain the door of the shop the Appellant threatened that he would assault him. Thereafter Mahadev rushed towards the School and met Yunus Shaikh (not examined), P.W. 8-Ravindra Deshmukh and P.W. 10-Tanaji Patil. He narrated to them the aforesaid facts. Thereafter he along with them came to the grocery shop of Pintya alias Shrikant. They found, that the Appellant was standing there with an axe and a stone in his hands. P.W. 10 Tanaji Patil asked the Appellant to go inside his house and the latter acceded to his request. Thereafter P.W. 9 Mahadev unchained the door of the grocery shop of Pintya @ Shrikant. On peeping inside the shop he and others found that Chhabubai was lying dead and Pintya @ Shrikant was writhing in pain. Blood was lying on the ground and had also spread over the grocery articles. 6. P.W. 5 Hanmant Patil, who was working as Police Patil, on learning about the incident from one Ramjan Tamboli rushed to the spot. On peeping inside the shop he and others found that Chhabubai was lying dead and Pintya @ Shrikant was writhing in pain. Blood was lying on the ground and had also spread over the grocery articles. 6. P.W. 5 Hanmant Patil, who was working as Police Patil, on learning about the incident from one Ramjan Tamboli rushed to the spot. He asked the Appellant, who was present there, as to why he had assaulted Chhabubai and Pintya @ Shrikant. The Appellant replied that he had seen his wife Chhabubai in a compromising position inside the shop with Pintya @ Shrikant and consequently assaulted them. P.W. 5-Banmantthereafter asked Mahadev to take Pintya @ Shrikant to Hospital. Thereafter Mahadev with the help of Kisan and some other villagers carried Pintya @ Shrikant to Civil Hospital, Vairag, where the doctor gave first aid and advised that he be shifted to Civil Hospital, Solapur. On the way to Civil Hospital, Solapur, Pintya @ Shrikant succumbed to his injuries. 7. The F.I.R. of the incident was lodged by P.W. 5-Hanmant at 8.15 a.m. the same day to Police Station, Vuirag. On its basis Crime No. 88 of 1994, under Section-302 of I.P.C., was registered. 8. The investigation was conducted by P.W.14-C.P.I. Lumbutre and P.W.-15-A.P.1. Anis Kazi. 9. P.W. 14 C.P.I. Lambutre arrested the Appellant. He seized blood stained payjama and referred him to the doctor for medical examination. The medical examination of the Appellant was conducted by P.W. 16 Dr. Surekha Deshpande, who found that he had suffered abrasion over the right thumb at base, size 1 cm. x 1 cm. abrasion over the right hand over dorsum 1 cm. x 1 cm; and a contusion over left fore-arm and arm, respectively. 10. P.W. 14 C.P.I. Lambutre also prepared the Panchanama with respect to the dead body of Chhabubai, the spot Panchanama and seized the articles under Panchanama from the shop of Pintya @ Shrikant. Thereafter he handed over further investigation to A.P.I. Anis Kazi. 11. P.W. 15-Anis Kazi, recorded the statements of prosecution witnesses on 5-8-1994. He sent the seized articles for Chemical Analysis at Pune. Finally on 2-1-1995 he submitted the Charge Sheet against the Appellant in the Court of Judicial Magistrate, First Class, Barshi. 12. Going backwards, the post mortem examination on the dead body of Pintya @ Shrikant was conducted at 1.55 p.m. on 5-8-1994 by P.W. 12-Dr. He sent the seized articles for Chemical Analysis at Pune. Finally on 2-1-1995 he submitted the Charge Sheet against the Appellant in the Court of Judicial Magistrate, First Class, Barshi. 12. Going backwards, the post mortem examination on the dead body of Pintya @ Shrikant was conducted at 1.55 p.m. on 5-8-1994 by P.W. 12-Dr. Kanki, who found 5 chop wounds and 1 incised wound on the corpse 4 out of the 5 chop wounds were located on the skull region and one on the right palm. The incised wound was located on the right side of chest. On internal examination the doctor found haemotoma tinder the scalp and fracture of frontal and parietal bones. He opined that the deceased died on account of multiple chop injuries on the head with fracture of skull with injuries on brain and subdural haemotoma. The autopsy on the dead body of Chhabubai was conducted the same day at 3.00 p.m. by P.W. 16-Dr. Surekha Deshpande, who found two sharp cutting injuries, one on the face and one on the scalp of Chhabubai. Dr. Deshpande found that the maxillary bone was also fractured. She opined that Chhabubai died due to extensive haemorrhage on account of severe injury to vital organs like brain. 13. The case was committed to the Court of Sessions in the usual manner where charges under Section 302 of I.P.C. were framed against the Appellant. for committing the murders of Chhabubai and Pintya @ Shrikant. To the aforesaid charges he pleaded not guilty and claimed to be tried. His defence, as emerging from the extra-judicial confession made by him immediately after the incident to Hanmant Patil-P.W. 5 and from his statement recorded under Section 313 of Cr. P.C. was that seeing his wife Chhabubai and Pintya alias Shrikant in compromising position in the shop of the latter he tried to break open the door. At that the latter tried to assault him. Then he assaulted both of them. 14. In the trial Court as many as 15 witnesses were examined by the prosecution. In defence no witness was examined from the side of the Appellant. 15. The evidence adduced before the learned trial Judge was circumstantial in nature as there was no eye witness of the incident. 16. Then he assaulted both of them. 14. In the trial Court as many as 15 witnesses were examined by the prosecution. In defence no witness was examined from the side of the Appellant. 15. The evidence adduced before the learned trial Judge was circumstantial in nature as there was no eye witness of the incident. 16. The learned trial Judge accepted the defence of the Appellant which as mentioned earlier was that on finding his wife Chhabubai in a compromising position with Pintya @ Shrikant he became so much provoked and incensed that he fatally assaulted both of them. He gave the Appellant the benefit of Exception 1 to Section 300 of I.P.C. viz. that of grave and sudden provocation and convicted and sentenced him in the manner stated above. 17. I have heard Mr. T.E. Mane for the Appellant and Mrs. S.I. Pingulkar, Additional Public Prosecutor for the State of Maharashtra. I have also perused the impugned judgment. As mentioned earlier; Mr. T.E. Mane confined his submissions to the quantum of sentence. He contended that looking to the circumstances in which the deceased persons were done to death a sentence of 5 years R.I. is terribly excessive and calls for drastic reduction. Mrs. S.I. Pingulkar on the other hand, strenuously urged that looking to the number of injuries inflicted on the two deceased persons by the Appellant a sentence of 5 years R.I. is appropriate and just in the instant case. 18. Normally before finally deciding a Criminal Appeal the Appellate Court summons the record and only after perusing the same and hearing Counsel for the parties decides it. However, the proviso to sub-section (2) of Section 385 Cr. P.C. carves out an exception to this general procedure and provides that "If the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record." In view of the aforesaid provision, I am competent to finally decide this Appeal which is pressed only on the quantum of sentence without sending for the record of the trial Court. 19. So far as the merits are concerned, I find from a perusal of the impugned judgment that there is sufficient trustworthy evidence connecting the Appellant with the crime. 19. So far as the merits are concerned, I find from a perusal of the impugned judgment that there is sufficient trustworthy evidence connecting the Appellant with the crime. The incident is said to have taken place at about 7.00 a.m. on 5-8-1994 inside the grocery shop of the deceased Pintya @ Shrikant. Immediately thereafter Yunus Shaikh, P.W. 9 Mahadev and P.W. 10 Tanaji Patil saw the appellant standing outside the chained door of the aforesaid shop, with an axe in his hand. From a perusal of the impugned judgment it appears that all these witnesses arc independent and him no axe to grind against the Appellant. Consequently, the trial Court rightly believed their evidence. Corroboration is lent to the prosecution case by the extra judicial confession made by the Appellant to P.W. 5-Hanmant Patil at about the same time. On being questioned by Hanmant as to why he held assaulted the deceased persons, the Appellant replied that seeing his wife Chhabubai in a compromising position with Pintya @ Shrikant he murdered both of them. From a perusal of the impugned judgment it does not appear that Hanmant in any manner was ill disposed towards the Appellant. Had the Appellant not really made the aforesaid extra-judicial confession to him, he would not have falsely deposed about it. The fact that Hanmant lodged the F.I.R. of the incident within one and quarter hours of the incident i.e. at 8.15 a.m. on 5-8-1994 at Police Station, Vairag coupled with, the statement of the Appellant recorded under Section 313 of Cr, P.C. to the effect that finding his wife Chhabubai in a compromising position with Pintya @ Shrikant he became so much provoked that he killed both of them, also leave, in my mind not even an iota of doubt that the Appellant committed the crime in question. 20. In my view, the learned trial Judge was perfectly justified in convicting the Appellant under Section 304 Part II of I.P.C. 11. The only question which remains is that pertaining to the quantum of sentence. As mentioned earlier, the learned trial Judge awarded a sentence of 5 years R.I. to the Appellant. 22. 20. In my view, the learned trial Judge was perfectly justified in convicting the Appellant under Section 304 Part II of I.P.C. 11. The only question which remains is that pertaining to the quantum of sentence. As mentioned earlier, the learned trial Judge awarded a sentence of 5 years R.I. to the Appellant. 22. The learned trial Judge took the view, and rightly in my opinion, that the act of the Appellant in killing Chhabubai and Pintya @ Shrikant on finding them in a compromising position came within the ambit of the expression grave and sudden provocation as used in Exception 1 to Section 300 I.P.C. Exception 1 to section 300 of I.P.C. reads thus: "Exception 1. - When culpable homicide is not murder - 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. The above exception subject to the following provisos: First. - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly. -That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise bf the powers of such public servant. Thirdly. -That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation. -Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact." 23. There can be no quarrel with the submission of Mr. Mane that seeing his wife Chhabubai in a compromising position with Pintya @ Shrikant inside the shop of the latter the Appellant must have been deprived of his power of self control. There can also be no dispute that this provocation was both grave and sudden; was not self sought by the Appellant; but and was only and wholly given by Chhabubai and Pintya @ Shrikant when the Appellant found both of them in a compromising position inside the grocery shop of the latter. There can also be no dispute that this provocation was both grave and sudden; was not self sought by the Appellant; but and was only and wholly given by Chhabubai and Pintya @ Shrikant when the Appellant found both of them in a compromising position inside the grocery shop of the latter. The facts of the present case would show that the 3 provisos contained in Exception 1, which take out an act from the am bit of the defence of grave and sudden provocation, are not attracted in the instant case. 24. For any husband, specially a Hindu, there can be no graver and a more sudden and shocking provocation than to find his wife in a compromising position with some-one else. Adultery is a breach of carnal obligations of marriage and continence and fidelity are the bed-rock on which any marriage is founded. Words are incapable of extelling their value. The shock which the appellant must have received on finding his wife in a compromising position with Pintya @ Shrikant is beyond words to recapitulate. It must have resulted in a sudden and temporary loss of his self control. The Appellant must have momentarily become dumb stricken; in fact almost insane. It was in such a mental condition that the Appellant must have assaulted Chhabubai and Pintya alias Shrikant. 25. In a case of the present type the sentence should be token and not tormentingly-long which a sentence of 5 years R.I. under Section 304 Part II of I.P.C. is in the circumstances of this case. Section 304 Part II of the I.P.C. provides for: "Imprisonment of either description for a term which may extend to ten years, or with fine or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death." 26. A perusal of Section 304 Part II of I.P.C. would show that the maximum sentence which can be awarded is 10 years R.I. coupled with fine and the minimum, a sentence of fine only. Since two persons have been killed in the incident, I am not inclined to impose a sentence of fine alone as contended by Mr. T.E. Mane, Counsel for the Appellant. In my view some jail sentence should be awarded to the Appellant. Since two persons have been killed in the incident, I am not inclined to impose a sentence of fine alone as contended by Mr. T.E. Mane, Counsel for the Appellant. In my view some jail sentence should be awarded to the Appellant. The loss of two human lives cannot be very lightly ignored. After giving my anxious consideration to the over all circumstances, in my view, a sentence of 1 (one) year R.I. would squarely meet the ends of justice. 27. Facts similar to those found in the present case came up for consideration before a Division Bench of the Madras High Court in the case reported in 1972 Criminal Law Journal, page 1641, in re Vadivel Padavachi. In that case the Appellant saw with his own eyes his wife lying almost completely naked with her paramour whose private parts were also visible and fatally assaulted both of them by an axe. The trial Court had convicted and sentenced the Appellant to life imprisonment under Section 302 of I.P.C. The Madras High Court, however, acquitted him under Section 302 of I.P.C. and instead convicted him under Section 304 Part I of I.P.C. on which count it reduced the jail-sentence to the period already undergone by him, which was one year and seven months. 28. In the result, this Appeal is partly allowed and partly dismissed. Although I confirm the conviction of the Appellant under Section 304 Part II of I.P.C., recorded by the learned Additional Sessions Judge, Solapur, vide his Judgment and Order dated 28-9-1995, but I set aside the sentence of 5 years R.I. imposed by him on the Appellant and instead sentence the Appellant to undergo 1 (one) year RY. In computing this period of one year RI. the period in which the Appellant has been in jail as an under trial and convict would be included. 29. Although I have awarded the Appellant a sentence of one year's R.I. under Section 304 Part II of I.P.C. I cannot refrain from observing that this is an appropriate case in which the State Government, if it so chooses, may exercise the powers vested in it under Section 432(1) of Cr. P.C. and remit such portion of the sentence of the Appellant as it deems fit and proper. 30. P.C. and remit such portion of the sentence of the Appellant as it deems fit and proper. 30. The Office shall forthwith send a copy of my judgment to the Judicial Secretary and the Chief Secretary of the Government of Maharashtra, Mantralaya, Bombay. They shall place it for consideration before the appropriate authorities. The Appellant and the Superintendent of the Jail in which he is detained, shall also be informed about this judgment by the office. Appeal allowed partly.