Judgment B. R. ARORA, J. ( 1 ) THIS appeal is directed against the judgment dated 6-7-89, passed by the Additional Sessions Judge No. 1. Sri Ganganagar by which the learned Additional Sessions Judge convicted the appellant for the offences under Sees. 302 and 326 IPC and sentenced him to undergo imprisonment for life and a fine of Rs. 500/- and in default of payment of fine further to undergo six months rigorous imprisonment for the offence under Sec. 302 IPC and five years rigorous imprisonment and a fine of Rs. 400/- and in default of payment of fine further to undergo four months rigorous imprisonment for the offence under Sec. 326 IPC. Both the sentences were ordered to run concurrently. ( 2 ) APPELLANT Birbal Ram was tried by the learned Additional Sessions Judge No. I, Sri Ganganagar, for the offences under Sees. 302 and 307 IPC for committing the murder of his wife Smt. Lichrna and making an attempt on the life of his father-in-law Dewa Ram. The case of the prosecution, which resulted in the trial and conviction of the accused-appellant is that Smt. Lichma was married to appellant Birbal and out of this wed-lock, a daughter aged about five years was born to her. About three months prior to the date of the incident, the accused gave beatings to Smt. Lichma and turned her out from his house. On the fateful day, the deceased was living with her father. On 6-4-87, at about 12. 00 in the noon, the accused went to his in-laws house armed with a sword. At that time Dewa Ram, Ram Swaroop, Smt. Chawli and the other members of the family were in the house. Accused Birbal Ram, just after entering into the house of his in-laws, started giving sword blows to his father-in-law Dewa Ram. The other members of the family, including Smt. Lichma (the wife of the accused) ran away. When Smt. Lichina reached in front of the house of Moti Ram Bawni, the accused inflicted injuries by the sword on the person of Smt. Lichma and due to which she fell down. Thereafter the accused dragged his wife to the open place and inflicted injuries by the word and killed her. Smt. Lichma received injuries on her thigh, face, head and other parts of the body. Thereafter the accused dragged his wife to the open place and inflicted injuries by the word and killed her. Smt. Lichma received injuries on her thigh, face, head and other parts of the body. The case of the prosecution, further, is that the accused was a man of loose character and used to ask his wife Smt. Lichma to bring some girl for him and when she refused to acceed to his test she was given beatings and turned out of the house. The prosecution, in support of its case, examined seven witnesses. The accused did not examine any witness in his defence. The case of the accused, in defence, is that his wife Smt. Lichma was a lady of easy virtues and had left the house of the accused and started living with her parents. He went to bring her back to his house. His father-in-law Dewa Ram was in the house and was preparing earthen plant-pots and when he entered inside the/room, he found Smt. Lichma in a compromising position with one Kishna Ram Jat. On seeing him, Smt. Lichma took-up her S al war and ran naked. Kishan Lal Jat, also, ran away. He lost his balance of mind and took-up the sword hanging in the room and followed his wife. His father-in-law Dewa Ram, in order to save his daughter Lichma, grappled with him, due to which Dewa Ram received injuries. No lady was inside the house of his father-in-law. After getting rescued himself from his father-in-law, he followed his wife and inflicted injuries to her with the sword. The learned trial Court did not believe the defence version and convicted and sentenced the accused-appellant for the offence under Sec. 302 IPC. He, however, acquitted the appellant of the offence under Sec. 307 IPC for making an attempt on the life of his father-in-law Dewa Ram but convicted and sentenced him for the offence under Sec. 326 IPC. ( 3 ) NO dispute has been raised, and rightly so, by the learned counsel for the appellant so far as the taking place of the occurrence is concerned. ( 3 ) NO dispute has been raised, and rightly so, by the learned counsel for the appellant so far as the taking place of the occurrence is concerned. The only contention raised by the learned counsel for the appellant is that the accused-appellant found his wife Smt. Lichma in a compromising position with Kishan Lal Jat and he lost his control and mind and in a grave and sudden provocation he inflicted injuries by the sword on the person of Smt. Lichma and, therefore, the conviction and sentence of the accused-appellant for the offence under Sec. 302 IPC are wholly illegal and the same deserves to be quashed and set-aside. In support of his contention, learned counsel for the appellant has placed reliance over Kanti Lal v. State of Rajasthan and Ajit Singh v. State of Punjab. He has further submitted that the appellant never inflicted any injury to his father-in-law Dewa Ram but it was only on account of grappling of Dewa Ram with the appellant that he received injuries and, therefore, the conviction and the sentences of the appellant for the offence under Sec. 326 IPC are, also, wholly uncalled-for and the appellant deserves acquittal on this account, also. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the learned trial Court and submitted that it was not on account of any grave and sudden provocation that the appellant inflictedinjuries to his wife Smt. Lichma but it was a-premeditated act of the appellant as he came to his in-lawst house armed with a sword and first inflicted injuries to his father-in-law Dewa Ram and thereafter killed his wife Smt. Lichma. ( 4 ) WE have considered the submissions made by the learned counsel for the parties: No dispute has been raised by the learned counsel for the appellant with respect to the incident and it is an admitted fact that Smt. Lichma was murdered by the appellant. According to the prosecution case, the appellant came armed with a sword to the house of his in-laws and first inflicted sword injuries to his father-in-law Dewa Ram and thereafter followed Smt. Lichma in the lane and committed her murder by inflicting injuries with a sword. According to the prosecution case, the appellant came armed with a sword to the house of his in-laws and first inflicted sword injuries to his father-in-law Dewa Ram and thereafter followed Smt. Lichma in the lane and committed her murder by inflicting injuries with a sword. The cause of the incident, according to the prosecution, was that Smt. Lichma refused to supply girl to the accused and, therefore, she was turned-out from the house by the appellant while the defence version is that the accused came to his in-laws house and saw Smt. Lichma and Kishan Lal Jat in compromising position and on seeing this he lost his mental balance, took-up the sword hanging in the room and followed Smt. Lichma who ran away seeing the accused-appellant and committed her murder. ( 5 ) THE question, which, therefore, requires consideration is: whether the appellant has been able to establish the balance of the probabilities of the circumstances which could bring his case within the Exception I of Sec. 300 IPC and whether the alleged provocation was sufficient so that the appellant would have lost his self-control. The incident took-place in the open lane in front of the house of Mani Ram and the dead body, even as per the admitted case of the prosecution, was lying in a naked position. PW 1 Ram Swaroop the brother of the deceased has admitted that when the police came at that time the Salwar and Shirt were not found on the dead body of Smt. Lichma. PW 2 Dewa Ram the father of deceased Smt. Lichma has also admitted that the clothes were not found on the dead body of Smt. Lichma as they were tom by the accused-appellant and were removed. PW 3 Chawli the mother of the deceased and PW 4 Smt. Santo the sister-in-law (Bhabhi) of the deceased, have also, admitted that Smt. Lichma was not having Shirt and Salwar on her body when she was murdered. PW 5 Surjeet Kumar Kaur has stated that the Saiwar of deceased Lichma was lying by the side of her dead body and was tom one. PW 11 Radhey Gopal the investigating officer has also admitted that the dead body of Smt. Lichma was found lying naked. From the evidence of these witnesses it is, therefore, amply clear that when Smt. Lichma was murdered, she was not having clothes on her body. PW 11 Radhey Gopal the investigating officer has also admitted that the dead body of Smt. Lichma was found lying naked. From the evidence of these witnesses it is, therefore, amply clear that when Smt. Lichma was murdered, she was not having clothes on her body. According to PW 3 Smt. Chawli and PW 4 Smt. Santo, deceased was preparing tea at the time when the accused came there armed with a sword. When Smt. Lichma ran from the house, she was followed by the accused and was given beatings by the sword and was murdered by the appellant in the street. Thus, there was no possibility of taking out the clothes from the body of Smt. Lichma. It is therefore, clear that when Smt. Lichma ran from the house of her father. at that time she was not having clothes on her body and was completely naked when she was put to death. The story put by the accused in his defence, thus, appears to be more probable than that of the prosecution. PW 1 Ram Swaroop the brother of the deceased has even admitted the coming of Kishan Lal Jat on that day of their house and has stated that he had come to engage them on work on daily wages basis. He has also admitted that Kishan Lal Jat went with him to lodge the report at the Police Station and was with him when the report was lodged. Though PW 1 Ram Swaroop has admitted their relations with Kishan Lal Jat and his coming to their house but PW 2 Dewa Ram. PW 3 Smt. Chawli and PW 4 Smt. Santo have gone to the extent of saying that they do not know who Kishan Lal Jat is. The probability of the defence case shows that the accused then went to his in-laws house, he found deceased Smt. Lichma in a compromising position with Kishan Lal Jat, which provoked him. he lost his self-control and in a grave al)d sudden provocation, took-out the sword and put his wife Smt. Lichma to death. When PW 2 Dewa Ram - the father of the deceased - tried to rescue his daughter, he also received injuries. he lost his self-control and in a grave al)d sudden provocation, took-out the sword and put his wife Smt. Lichma to death. When PW 2 Dewa Ram - the father of the deceased - tried to rescue his daughter, he also received injuries. There was no time-lag between the seeing of his wife in an indecent position with Kishan Lal Jat and the commitment of the murder that the passion of the accused could have been cooled-down. In our opinion, the case of the appellant, therefore, falls within the Exception I of Sec. 300 and he cannot be held guilty for the offence under Sec. 302 IPC but he is liable for committing the culpable homicide not amounting to murder and can be convicted for the offence under Sec. 304 Part I, IPC. The conviction and the sentence of the appellant for the offence under Sec. 302 I. P. C. passed by the learned trial Court, therefore, deserve to be quashed and set aside and the appellant is convicted under Sec. 304 Part-I, IPC. However, his conviction and sentence for the offence under Sec. 326 IPC are maintained. ( 6 ) IN the result, the appeal filed by he appellant is partly allowed. The judgment dated 6-7-89, passed by the learned trial Court, convicting and sentencing the appellant for the offence under Sec. 302 IPC, is set-aside and the appellant is convicted for the offence under Sec. 304 Part I, IPC and is sentenced to undergo ten years rigorous imprisonment and a fine of Rs. 1000/- and in default of payment of fine further to undergo two months rigorous imprisonment. His conviction and sentence for the offence under Sec. 326 IPC passed by the learned trial Court are maintained. The period of imprisonment undergone by the appellant during investigation enquiry and trial shall be set-off against the term of imprisonment imposed upon him. Appeal allowed partly.