JUDGMENT - J.N. PATEL, J.:---In Sessions Trial No. 32 of 1991, the learned 2nd Additional Sessions Judge, Wardha, by his judgment and order dated 6th August, 1994, convicted the appellants for having committed an offence under section 302 read with section 34 of Indian Penal Code and sentenced them to suffer rigorous imprisonment for life and to pay a fine of Rs. 500/- each, in default, to suffer rigorous imprisonment for three months. The Court also ordered set-off under section 428 of Criminal Procedure Code, 1973 to the respective accused. The appellants appealed against their conviction. 2. The facts were these : The incident occurred on 25-06-1990 between 7.00 to 8.00 p.m. at village Pimpalgaon, within the jurisdiction of Police Station, Girad, Sub-Division Hinganghat, District Wardha. At the relevant time and place, deceased Viktu, son of the complainant-Namdeorao Dattu Kavade, was sitting in the house of his maternal uncle - Bhimroa s/o Natthuji Telange (P.W. 1). At that time, Wasudeo s/o Uttam Pantawane (P.W. 6) called him and took him away near banyan tree. That, suddenly all the appellants/accused came together. Bhanudas Uddavrao Bhagat and Uddhaorao s/o Rodba Bhagat caught hold of Viktu and Tarachand s/o Udhaorao Bhagat dealt blows with an iron knife (Suri) on his abdomen, lower part of abdomen and legs etc. because of which he fell on the ground. The incident was witnessed by many persons in the village. Injured Viktu was thereafter put in the bullock-cart for being taken to Girad, but while reaching at Jogingumpha village, he died. His dead body was brought to Police Station, Girad, where Namdeo Dattuji Kawade, lodged his report, which was recorded on 26-6-1990 at 4.30 hrs., vide Crime No. 29/1990 and an offence under section 302 read with 34 of I.P.C., came to be registered against the appellants. 3. The appellant Nos. 1 and 2 - Tarachand and Bhanudas are the sons of the third appellant-Udhaorao s/o Rodba Bhagat and they are all residents of village Pimpalgaon. 4. According to the prosecution, the appellants, in furtherance of their common intention, have committed murder of Viktu s/o Namdeo Kawade on account of monies lent to Viktu by the appellants. 3. The appellant Nos. 1 and 2 - Tarachand and Bhanudas are the sons of the third appellant-Udhaorao s/o Rodba Bhagat and they are all residents of village Pimpalgaon. 4. According to the prosecution, the appellants, in furtherance of their common intention, have committed murder of Viktu s/o Namdeo Kawade on account of monies lent to Viktu by the appellants. Another story is that the murderous assault took place because Viktu on a day earlier to the incident had caught hold of the hand of Hemlata, niece of Tarachand, and daughter of Bhanudas and had threatened the women folk of their family that he would kidnap Hemlata. 5. Pradip s/o Premchand Patil (P.W. 10), who was P.S.I. on duty at Police Station, Girad at the relevant time, after recording the First Information Report, deputed the Police staff to village Pimpalgaon in search of the accused persons. He prepared Inquest of the dead body of deceased Viktu in the presence of the panchas. The Inquest Panchanama is at Exhibit-44. The seized clothes i.e. Lungi, Dhoti, Dupatta were sent to Chemical Analyser and the dead body of the deceased was sent to Cottage Hospital, Hinganghat, for post mortem. P.S.I. Patil recorded the statements of the persons relating to the incident, including that of Police Patil of the village and also took report (Exhibit=40) given by the Police Patil. On 26-06-1990, the appellants came to be arrested and brought to Police Station, Girad and Panchanama of their arrest came to be prepared. The Police Officer seized the bloodstained banian of the accused-Tarachand, under seizure Panchanama (Exhibit-46). In the course of investigation, Tarachand is supposed to have made a statement, which came to be recorded in the presence of the panchas, pursuant to which, the Police was able to seize the knife (suri) (Article No. 9) from the house of Tarachand, under the seizure Memo (Exhibit-48). The Police has also prepared Panchanama as regards scene of offence (Exhibit-49); collected blood samples mixed with soil; pair of slippers from the scene of offence. The accused were also referred to the Medical Officer for drawing their blood samples. The seized articles and samples were sent to Chemical Analyser for analysis. After the seizure of the knife (suri) (Article No. 9), it was sent to the Medical Officer for his opinion. The accused were also referred to the Medical Officer for drawing their blood samples. The seized articles and samples were sent to Chemical Analyser for analysis. After the seizure of the knife (suri) (Article No. 9), it was sent to the Medical Officer for his opinion. The investigation having been completed and after obtaining the post mortem report and the Chemical Analyser's report in the case, charge-sheet came to be submitted against the accused persons in the Court of judicial Magistrate, First Class, Hinganghat, for having committed an offence under section 302 read with section 34 of I.P.C. In the course of the investigation, P.S.I. Patil also got recorded the statement of Wasudeo s/o Uttam Pantanwane (P.W. 6), before the J.M.F.C., Hinganghat under section 164 of the Cr. P.C. on 11-07-1990. The J.M.F.C., Hinganghat, committed the case to be the Court of Sessions for trial which came to be assigned to the 2nd Additional Sessions Judge for trial. 6. On 23-06-1993, the learned Additional Sessions Judge framed a charge (Exhibit-17) against the appellant/accused. The appellants/accused pleaded not guilty and claimed to be tried. The prosecution in support of their case examined Bhimrao s/o Nathuji Telange (P.W. 1); Raju s/o Namdeo Kawade (P.W. 2); Dhanraj s/o Natthu Telange (P.W. 3); and Mahadeo s/o Rajendra Jangale (P.W. 4), as eye-witnesses to the incident. The prosecution also examined Namdeorao s/o Dattu Kawade (complainant) (P.W. 8) and other witnesses relating to the various panchanamas prepared in the course of investigation. In order to prove that the deceased Viktu died a homicidal death, the prosecution has examined Dr. Prabhakar s/o Khushalrao Kakade (P.W. 9) and also placed on record the C. As. report (Exhibits 71 and 72). The appellate Nos. 1 and 2 did not examine themselves or any witnesses on their behalf, whereas the appellant No. 3 Uddhaorao, who took the plea of alibi in his defence, examined three witnesses on his behalf. 7. The learned 2nd Additional Sessions Judge found that the prosecution has proved that on 25-06-1990 between 7.00 to 10.00 p.m., at village Pimpalgaon, Viktu s/o Namdeo Kawade met with violent, unnatural and homicidal death. The Court also found that the appellants/accused, in furtherance of their common intention, committed murder of deceased Viktu and proceeded to convict and sentence them, for having committed offence under section 302 read with section 34 of I.P.C. 8. The Court also found that the appellants/accused, in furtherance of their common intention, committed murder of deceased Viktu and proceeded to convict and sentence them, for having committed offence under section 302 read with section 34 of I.P.C. 8. The key issues in the case appear to be as to whether the prosecution has proved that all the appellants/accused, in furtherance of their common intention, have participated in committing the murder of Viktu; and whether the case of the appellant/accused No. 1 Tarachand would fall within Exception 1 of section 300 of I.P.C. 9. Mr. Daga, learned Counsel appearing for the appellants/accused, submitted that though the prosecution has examined eye-witnesses in the case, Bhimrao; Raju and Dhanraj (P.Ws. 1, 2 and 3 respectively) are the relatives of deceased Viktu and, therefore, they are interested witnesses. It is submitted that their evidence in the Court is full of contradictions and omissions and these two facts together make them unreliable and, therefore, it will not be safe to rely upon the evidence of these witnesses to convict the appellants/accused. It is further submitted that in so far as Bhimrao Telange is concerned, if material omission in his evidence is considered, one would find that he came to the scene of offence after the incident of assault was over and, therefore, it cannot be said that he is an eye-witness. Similarly, Raju s/o Namdeo Kawade (P.W. 2), who does not corroborate Bhimrao, on the point of incident and the participation of all the appellants/accused, also cannot be considered as an eye-witness and in so far as Dhanraj (P.W. 3) is concerned, he is a chance witness, who happened to be there and has gone to the extent of improving his case before the Court by stating that Tarachand assaulted Viktu by sitting on his chest, which is not the case of other eye-witnesses to the incident and, therefore, all these witnesses did not, in any manner, inspire confidence and their evidence deserves to be discarded. 10. Mr. Daga, submitted that insofar as the relatives of deceased Viktu are concerned, they are interested witnesses and the possibility of these witnesses, roping in the appellant Nos. 2 and 3, cannot be ruled out. 11. 10. Mr. Daga, submitted that insofar as the relatives of deceased Viktu are concerned, they are interested witnesses and the possibility of these witnesses, roping in the appellant Nos. 2 and 3, cannot be ruled out. 11. In respect of Wasudeo s/o Uttam Pantawane (P.W. 6), it is submitted that evidence of this witness is full of improvement and he does not corroborate the other eye-witnesses on the point of participation of all the appellants/accused in the murderous assault made by them. It is submitted that this witness has only implicated Tarachand insofar as assault on Viktu is concerned and is very specific when Tarachand assaulted deceased Viktu, with knife, nobody else was present. It is submitted that this witness has also narrated before the Court as to in what mode Tarachand assaulted Viktu with the knife and that is only to beat Viktu and not to commit his murder. Therefore, according to Mr. Daga, the evidence of this witness clearly indicates that it is only Tarchand, who was instrumental in committing murder of deceased Viktu and that the prosecution did not declare him as hostile and, therefore, if the evidence of Wasudeo Pantawane, who is an independent eye-witness is taken into consideration, the case of the appellant/Tarachand would fall within Exception 1 of section 300 of I.P.C. 12. Mr. Daga further submitted that even if it is accepted that Tarachand assaulted the deceased Viktu with the knife, he has caused in all six to seven incise wounds, which would show that the assailant was unable to control himself for the reason that his niece was sexually assaulted by deceased Viktu. Summing up his argument, Mr. Daga submitted that in so far as case of appellants Bhanudas and Uddhao is concerned, as prosecution has given two different stories about their participation, they can be extended benefit of doubt and deserve to be acquitted. In so far as Tarachand is concerned, the Court may be pleased to consider his case and alter his conviction from offence under section 302 of I.P.C. to that under section 304 of I.P.C. 13. Mr. Phatak, learned A.P.P., appearing for the State submitted that the prosecution has clearly established its case against all the appellants/accused for having committed murder of deceased Viktu in furtherance of their common intention. It is submitted that merely because P.Ws. Mr. Phatak, learned A.P.P., appearing for the State submitted that the prosecution has clearly established its case against all the appellants/accused for having committed murder of deceased Viktu in furtherance of their common intention. It is submitted that merely because P.Ws. 1, 2 and 3 are related to the deceased and may be called interested witnesses, but considering the fact that their presence at the scene of offence cannot be ruled out, there is no reason for them to have roped in innocent persons, viz. the appellant Bhanudas and his father Uddhaorao alongwith Tarachand, if they had not participated. It is submitted that all the three witnesses have given consistent, cogent and reliable evidence, in so far as participation of all the three appellants/accused in the assault on deceased Viktu is concerned. It is submitted that these witnesses have clearly stated that Bhanudas and Uddhao caught hold the deceased Viktu, which facilitated Tarachand to assault him with the knife. It is submitted that their evidence is duly corroborated by the First Information Report. The recovery of weapon of assault (Article 9), which is found to be stained with human blood; seizure of clothes of Tarachand found stained with blood and such other facts coupled with the evidence of Medical Officer Dr. Prabhakar s/o Khushalrao Kakade, help the prosecution in sufficiently establishing that the appellant Tarachand had stabbed the deceased Viktu on vital parts of the body and these injuries were sufficient in ordinary course to cause his death and, therefore, there is no merits in the appeal. 14. It is submitted by the learned A.P.P. that in so far as the witness Wasudeo Pantawane (P.W. 6) is concerned, he corroborates the three eye-witnesses on the point of assault by Tarachand on Viktu by knife (Suri). The learned Counsel urged before us that evidence of Wasudeo cannot be used for disproving the evidence of the three eye-witnesses as Wasudeo has married the daughter of Bhanudas and in all probabilities he wanted to protect his own father-in-law Bhanudas and grand father-in-law Uddhao and that is how he skips to mention the participation of Bhanudas and Uddhao in the assault on deceased Viktu. 15. 15. Learned A.P.P. submitted that the appellants/accused, particularly, Tarachand has not taken any such plea that the offence committed by him was under sudden and grave provocation, nor the facts and circumstances go to show that there was any imminent provocation to Tarachand to have come armed with knife and assaulted Viktu. It is submitted that even if it is accepted that Viktu had tried to catch hand of his niece Hemlata, there was sufficient time, in between, for Tarachand to cool down and, therefore, the appellant/accused again cannot take advantage of the situation and claim benefit of Exception 1 to section 300 of I.P.C. Therefore, it is submitted by the learned A.P.P. that the prosecution having established its case against all the three appellants/accused, for having committed murder of deceased Viktu, in furtherance of their common intention, the appeal deserves to be dismissed. 16. Now, let us examine the prosecution's case as regards participation of all the appellants/accused in assaulting the deceased Viktu and whether the prosecution has successfully proved that all the appellants/accused acted in furtherance of their common intention to commit murder of deceased Viktu. In order to establish its case against all the three appellants/accused, the prosecution has examined Bhimrao s/o Natthuji Telange P.W. 1 maternal uncle of the deceased; Raju s/o Namdeo Kawade P.W. 2 younger brother of the deceased; and Dhanraj s/o Natthu Telenge P.W. 3 another maternal uncle of the deceased. Bhimrao P.W. 1 and Dhanraj P.W. 3 are consistent on the fact that they saw accused Bhanudas having caught hold the legs of deceased Viktu, the accused-Uddhao had caught head of Viktu and accused Tarachand gave blow of knife (suri) on the abdomen, lower part of abdomen and legs etc.; and due to this assault made by Tarachand, Viktu sustained bleeding injuries on his person. When Viktu raised and alarmed, the father and mother of Viktu arrived at the place and on seeing them, Tarachand, Bhanudas and Uddhao left Viktu and ran away. Raju-P.W. 2 has slight different story to tell. According to him, Tarachand Bhagat assaulted his brother with the help of knife on his abdomen and on his chest and on the lower portion of his abdomen. At that time, accused Bhanudas had also come there and he had caught hold the legs of his brother-Viktu and accused Uddhao had also caught hold the head of his brother. According to him, Tarachand Bhagat assaulted his brother with the help of knife on his abdomen and on his chest and on the lower portion of his abdomen. At that time, accused Bhanudas had also come there and he had caught hold the legs of his brother-Viktu and accused Uddhao had also caught hold the head of his brother. We have also seen the vernacular version of this witness, recorded by the Court; and the impression one would gather from the evidence of this witness is that the acts attributed to Bhanudas and Uddhao for catching hold of legs and head of his brother by these accused was after Tarachand assaulted Viktu with the help of knife. On the other hand, the other two witnesses who are maternal uncles of the deceased Viktu are very specific that firstly, these two accused persons, viz. Bhanudas and Uddhao caught hold of Viktu and then he was assaulted by Tarachand. We do find some contradictions and omissions in the evidence of these three witnesses, but to our mind, they are not material so as to disbelieve them on the point that Tarachand assaulted Viktu with the knife and caused multiple injuries, as a result of which, Viktu fell down. But, if the evidence of these three witnesses is read alongwith the evidence of Wasudeo-P.W. 6, we find that Wasudeo-P.W. 6 has given clean chit to Bhanudas and Uddhao Bhagat, when he stated that accused Tarachand held the hand of Viktu and took him towards his house saying that, he wanted to ask something and by the side of courtyard, Tarachand assaulted Viktu with the help of suri and there was nobody present at the place of assault. He has clarified it by stating that at the place of assault, the two maternal uncles of Viktu, their wives and grandfather and mother of Viktu were also present. But nobody was present with Tarachand to indicate that Bhanudas and Uddhao were not there and, therefore, we have no hesitation to hold that in all probabilities, Bhanudas and Uddhao might have arrived at the scene after Tarachand assaulted Viktu with suri. We say so considering the background in which the incident is supposed to have happened. According to two maternal uncles of deceased Viktu, viz. We say so considering the background in which the incident is supposed to have happened. According to two maternal uncles of deceased Viktu, viz. Bhimrao-P.W. 1 Dhanraj-P. W. 3, the incident has taken place because Viktu was indebted to the appellants/accused and it was on their demand for money. On the other hand, Wasudeo-P.W. 6, who appears to be a close friend of Viktu and was in his company for most of the time during the day till the incident took place, comes with a different story. According to him, Tarachand assaulted Viktu and was looking for him. In his evidence, he has stated that when they returned to the village Pimpalgaon at about 5.00 p.m. and went to the house of Viktu, the mother of Viktu told Viktu that Tarachand had come to her house and narrated her that Viktu had caught his niece and hence he would beat him and from the house of Viktu he and Viktu went towards the house of maternal uncle Bhimrao Telange P.W. 1. After he was proceeding from residence of maternal uncle of Viktu, Tarachand met him and asked him where Viktu was. He showed his ignorance and, thereafter Tarachand went towards the house of maternal uncle of Viktu. There Tarachand gave call to Viktu by his name. When Viktu came and stood at the door of the house of his maternal uncle, accused Tarachand supposed to have caught hold of the hand of Viktu and took him away towards his house saying that he wanted to ask something and by the side of courtyard of Bhanudas, Tarachand assaulted Viktu with the help of suri. We find that the motive attributed to the assailants by Bhimrao P.W. 1 and Dhanraj-P.W. 3 that Tarachand assaulted Viktu in the background of some money lending transaction, does not appear to be correct. The motive for assaulting Viktu by Tarachand was in the background that Viktu had tried to catch hold the hand of Hemlata niece of Tarachand. We find that the motive attributed to the assailants by Bhimrao P.W. 1 and Dhanraj-P.W. 3 that Tarachand assaulted Viktu in the background of some money lending transaction, does not appear to be correct. The motive for assaulting Viktu by Tarachand was in the background that Viktu had tried to catch hold the hand of Hemlata niece of Tarachand. We will refer to this aspect of the evidence while dealing with other issues, but this sufficiently establishes that P.W. 1-Bhimrao; P.W. 3-Dhanraj have tried to cover up the conduct of Viktu by attributing false motives to Tarachand and in the background that daughter of Bhanudas was the reason behind the assault, they did not feel hesitation to rope in Bhanudas as well as Uddhao father of Tarachand and Bhanudas, having participated in the assault. Therefore, on examining the facts and circumstances, as regards participation of the appellants in the murderous assault on Viktu, it cannot be ruled out that Bhimrao-P.W. 1 and Dhanraj-P.W. 3 have attempted to rope in Bhanudas and Uddhao in the incident. Otherwise there was no reason for Wasudeo-P.W. 6 to have excluded them from participation. We find Wasudeo to be more reliable and truthful in narrating the incident. His evidence cannot be discarded for the reason that he is the only independent eye-witness, who has supported the prosecution case and the prosecution has heavily relied upon him as their witness. His presence is not disputed. The learned A.P.P. tried to impress upon us by saying that Wasudeo-P.W. 6 has tried to favour Bhanudas and Uddhao as he has married the daughter of Bhanudas. What we find from his evidence is that he has married the daughter of Bhanudas against the wishes of her parents and that he has left the village. From his evidence on record, we do not find that the prosecution has tried to discredit him on any count and considering that the deceased Viktu and Wasudeo were close friends, his evidence cannot be brushed aside merely because the prosecution is not able to reconcile the evidence of the three eye-witnesses, who are related to the deceased and that of Wasudeo-P.W. 6 as regards participation of all the appellants/accused in the incident of assault. 17. 17. Another point, which remains to be considered before us, is whether case of appellant Tarachand deserves to be considered as one falling in Exception 1 to section 300 of I.P.C. In so far as prosecution's case that Viktu died a homicidal death is concerned, there is no doubt, nor it is disputed by the appellants/accused. Dr. Kakade (P.W. 9), who conducted the autopsy on the dead body of the deceased Viktu, at Cottage Hospital, Hinganghat, found the following external injuries on the person of Viktu : 1. Incised wound over knee 1" x ½" skin deep; 2. Incised wound over symphysis pubis over lower abdomen 1" x ½" deep to abdomen cavity; 3. Incised wound over epigastric region 1" x ½" deep to abdomen cavity; 4. Incised wound over epigastric region suferphesial 1" x ½"; 5. Incised wound over chest to the left side measuring 1" x ½" deep to thoracic cavity; 6. Incised wound over right arm medical size 2" x 1" deep to muscle; 7. Incised wound over knee medical side 1" x ½" The Doctor opined that all injuries were fresh injuries before death and the said injuries were ante mortem injuries and the object of all those injuries was hard and sharp. On internal examination, the Doctor found the following injuries : 1. Incised wound over chest left side 12 x ½ deep to thoracic cavity perforating to chest wall and plural surface of the left side : 2. Blood was found present in abdomen cavity, Parocolic gutter was found filled with blood. One foot loop intestine had come out of the abdomen cavity through lower epigastric injury; 3. Tear to intestine ½" x 1 c.m.; 4. 1 foot loop of large intestine had come out of the abdomen cavity through upper insigne through side of epigastric region. The Doctor was of the opinion that the probable cause of death of Viktu was hemorrhagic shock resulting due to multiple stab injuries over abdomen, knee and chest wall. According to Doctor Kakade all internal injuries were on vital part and injuries Nos. 2 to 5 alongwith internal injuries are sufficient to cause the death of human being if the proper treatment is not given to the injured. In the opinion of Dr. Kakade, injuries found on the dead body, while performing post-mortem report could be possible with the help of knife (suri) (Article No. 9). Mr. 2 to 5 alongwith internal injuries are sufficient to cause the death of human being if the proper treatment is not given to the injured. In the opinion of Dr. Kakade, injuries found on the dead body, while performing post-mortem report could be possible with the help of knife (suri) (Article No. 9). Mr. Daga, has tried to canvass before us that the appellant/Tarachand had no intention to commit murder of Viktu as what he wanted was to beat him and considering the opinion of doctor that if proper treatment is not given to the injured then these injuries would have been fatal. The nature of injuries inflicted by the accused does not bring the case within the definition of "murder" and at the most, it can be said that the appellant/Tarachand is guilty of offence under section 326. We do not accept this contention of Mr. Daga for the simple reason that the Doctor, in his evidence before the Court is very categorical that external injuries Nos. 2 to 5 alongwith internal injuries are sufficient to cause death of human being. Merely because doctor further opined that if the proper treatment is not given to the injured, would not in any way loose the gravity of the injuries caused by Tarachand with the help of knife. The medical opinion cannot be read and considered in part. The doctor has also opined that all internal injuries were on vital part. Therefore, we have no hesitation to hold that the appellant-Tarachand had assaulted the victim Viktu with the knife (suri) (Article No. 9) with an intention to cause death or causing such bodily injury as is likely to cause death, considering the nature of weapon used by Tarachand and the vital parts, on which, he inflicted wounds by giving stab blows to the victim. We find that the prosecution case against Tarachand is well corroborated by the factum of recovery of the knife (suri) (Article No. 9) at his instance. In addition to this, the clothes worn by him, at the time of incident and seized from him were also found stained with blood and the C.As. report clearly shows that the clothes seized from Tarachand and the knife (suri) (Article No. 9) were stained with human blood. 18. In addition to this, the clothes worn by him, at the time of incident and seized from him were also found stained with blood and the C.As. report clearly shows that the clothes seized from Tarachand and the knife (suri) (Article No. 9) were stained with human blood. 18. Let us now examine whether the case of appellant/accused Tarachand- falls within Exception 1 to section 300 of I.P.C. Exception 1 to section 300 reads as under : 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 is subject to the following proviso :- Firstly---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 of 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. The law is now well established that Exception 1 to section 300 can apply only when the accused is shown to have deprived of the power of self-control by grave and sudden provocation, which is caused by the person, whose death is caused. In order to further appreciate as to whether the case would fall within Exception 1 and when defence of provocation may arise where a person does intend to kill and inflict bodily harm but his intention to do so arise from sudden passion involving loss of self-control by reason of provocation. In order to further appreciate as to whether the case would fall within Exception 1 and when defence of provocation may arise where a person does intend to kill and inflict bodily harm but his intention to do so arise from sudden passion involving loss of self-control by reason of provocation. This plea was examined by the learned trial Court by referring to the case of (K.M. Nanavati v. State of Maharashtra)1, reported in A.I.R. 1962 S.C. 605, wherein the Apex Court has summed up the law relating to the Exception 1 of section 300 as regards sudden provocation as applicable to India when it observed that : "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. 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. 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. 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." 19. Though the learned trial Court properly appreciated the requirement of Exception 1 to section 300 I.P.C., what we find is that it was mislead and deviated from the point in issue by considering the case in wrong perspective. The learned trial Court observed that : as the appellant No. 1 has not taken such type of defence during the course of examination of prosecution witnesses as well as examination of defence witnesses and also in his examination under section 313 of Cri.P.C., such defence urged in the course of arguments by the learned Advocate for the accused No. 1 cannot be accepted. The learned trial Court also fell in error when it found that there is absolutely no specific evidence on the point of teasing or outraging of modesty, which could have provoked the appellants/accused and that version about outraging the girl Hemlata has come on record during cross-examination of the Investigating Officer, who admitted that it transpired from the statements of some witnesses that the deceased Viktu caught hold the hand of Hemlata on the previous day of incident or in the noon time of the day of incident, but when actually the so-called incident happened is not brought on record. There is no eye-witness examined to prove the alleged act of teasing or outraging the modesty of Hemlata and the so-called admission sought during the course of cross-examination of Investigating Officer cannot take place of actual proof as Investigating Officer is not an eye-witness to the actual happening. In so far as evidence of Wasudeo was concerned, the Court found that it indicates that there is possibility of love affair between Viktu and Hemlata and that Viktu having caught hand of Hemlata cannot be said to have outraged her modesty and even all this would not create a situation where the appellant could have taken plea of sudden and grave provocation and probably felt that there was sufficient time for the accused to have regained his control and discarded the arguments of the learned Counsel for the appellants. 20. We would like to reiterate the law on the point of various pleas available to an accused in his defence and how the appellants/accused can take advantage of the facts and circumstances brought on record during the trial. It is a cardinal principle of criminal jurisprudence that the burden of proving its case always rests with the prosecution. On the other hand, when the onus is shifted on the accused he is not required to furnish that standard of proof which is required of prosecution. If evidence on his behalf probablizes the plea, he will get benefit of doubt. Onus on accused would discharge by showing preponderance of probabilities in favour of the plea from materials on record and further the accused need not prove his case beyond reasonable doubt. In the present case there is sufficient material on record to show that the deceased Viktu did attempt to outrage the modesty of Hemlata, daughter of Bhanudas. Onus on accused would discharge by showing preponderance of probabilities in favour of the plea from materials on record and further the accused need not prove his case beyond reasonable doubt. In the present case there is sufficient material on record to show that the deceased Viktu did attempt to outrage the modesty of Hemlata, daughter of Bhanudas. In his evidence Wasudeo-P.W. 6 who appears to be close friend of the deceased Viktu, has stated that on the day of incident when they returned to the village and went to the house of Viktu, mother of Viktu told Viktu that Tarachand had come to her house and narrated to her that Viktu had caught hand of his niece and hence he would beat him. This fact that immediately prior to the incident, deceased Viktu has indulged in outraging the modesty of Hemlata, has been suppressed by the prosecution. This we say so from the evidence of P.W. 10-P.S.I. Pradip Patil. In the course of investigation P.S.I. has recorded the statement of Hemlata, Anysaya, Shewantabai and Vatsalabai, family members of the appellants. According to him, from their statements, it transpires to him that deceased Viktu was (sic) Hemlata and he often used to tease Hemlata and on the earlier day of the incident, Viktu had tried to take away Hemlata by holding her hand and Hemlata had opposed to it. Further on the day of incident, i.e. on 25-06-1990, in the afternoon time deceased Viktu had caught the hand of Hemlata and he had threatened the family members of the appellants, saying that he would kindnap Hemlata and he had also rushed towards them to assault them and at that time, Viktu was under the influence of liquor. It is but natural that after Tarachand having come to know this conduct on the part of Viktu, he rushed to his house and complained to the mother of Viktu that Viktu has tried to outrage the modesty of his niece Hemlata and that he would beat him. Therefore, when Viktu alongwith his friend Wasudeo-P.W. 6 returned to his house, the mother of Viktu did tell them as to what has happened and Tarachand was looking for Viktu. Therefore, when Viktu alongwith his friend Wasudeo-P.W. 6 returned to his house, the mother of Viktu did tell them as to what has happened and Tarachand was looking for Viktu. It is in this sequence that when Tarachand meets Wasudeo (P.W. 6), he questions him regarding whereabouts of Viktu and calls him from the house of Bhimrao-P.W. 1, these facts go to show that Tarachand had lost his self-control and we have no hesitation to hold so, because Tarachand was on look out for Viktu from the time he was come to know that Viktu had been to their house and had tried to outrage the modesty of Hemlata, his niece, and abused and assaulted the family members of the appellants, in his attempt to outrage the modesty of Hemlata. Obviously the appellant was enraged and infuriated, looking to the conduct of Viktu, who has defiled the honour of the family by teasing the female members of the appellants family and in that state of mind, he was searching for Viktu. Therefore, considering the impact of this incident on Tarachand, in the context of social position and the village environment, one would hardly accept Tarachand to have ignored such an important event which affected reputation of his family and, therefore, it was quite reasonable on his part to have assaulted Viktu as soon as he found him. In our judgment, this material is sufficient to show that the case of the appellant No. 1 Tarachand would fall within Exception 1 to section 300 of I.P.C. 2. For these reasons, without hesitation, we have reached the conclusion that the prosecution has failed to prove beyond doubt that the appellant Bhanudas and Uddhao Bhagat have, in furtherance of their common intention, participated in the murderous assaulted on deceased Viktu, therefore, we find that they cannot be held guilty for having committed offence under sections 302 read with section 34 of I.P.C. and their conviction for having committed offence under section 302 read with section 34 of I.P.C. is quashed and set aside. Bhanudas, Appellant No. 2, who is lodged in the jail is directed to be released forthwith, if he is not required in any other case and the bail bond of the appellant No. 3 Uddhao stands cancelled as he is acquitted by us. 22. Bhanudas, Appellant No. 2, who is lodged in the jail is directed to be released forthwith, if he is not required in any other case and the bail bond of the appellant No. 3 Uddhao stands cancelled as he is acquitted by us. 22. In case of appellant No. 1 Tarachand, we find that his conviction for having committed offence under section 302 read with section 34 I.P.C. cannot be sustained and, therefore, we alter his conviction and we find him guilty for having committed offence under section 304 Part I of I.P.C. and modify his sentence from imprisonment for life to rigorous imprisonment for a period of 10 years, maintaining the sentence of fine. 23. The appeal is thus allowed in the aforesaid terms. Appeal allowed. -----