RAMESH MADHAV BAPAT, J. ( 1 ) THE sole accused, who is respondent herein, was tried by the Additional Sessions Judge, Nellore in Sessions Case No. 237 of 1994 for an offence punishable under S. 302 of the Indian Penal Code for causing the death of one Gade Bhaskar on 1-3-1993 in a Road Transport Corporation Bus. On evidence the learned Judge acquitted the accused-respondent of that offence, but proceeded to convict the accused-respondent of the offence punishable under S. 304, Part I of the Indian Penal Code and sentenced him to suffer imprisonment for five years. Aggrieved by the order of inadequacy of sentence imposed upon the accused-respondent and also acquitting the accused-respondent of the charge under S. 302 of the Indian Penal Code, the State of Andhra Pradesh preferred the present appeal. ( 2 ) THE prosecution case can be briefly narrated as follows :accused is a resident of Salabad village in Cuddapah district. The deceased was a resident of Ponagaluru village. P. W. 7 happened to be the wife of the accused. P. W. 6 is the sister of the deceased. The parents of P. W. 7 are the residents of Ponagaluru village. P. W. 6 belongs to Akalivalasa village. The deceased wanted to marry P. W. 7, who happened to be his paternal aunt s daughter, but for some reason the marriage between the deceased and P. W. 7 could not take place. P. W. 7 was married to the accused. ( 3 ) THE deceased was maintaining close relations with P. W. 7. Therefore, the accused suspected that his wife was having illicit relations with the deceased. ( 4 ) IT is the further case of the prosecution that on 1-3-1993 the accused went to Akalivalasa village and found the deceased in the house of his parents-in-law and P. W. 7 was closely talking to the deceased. While leaving the place, the deceased informed P. W. 7 that he was leaving for Rapur. On hearing the same the accused decided to do away with the deceased and followed him up to the bus stand. ( 5 ) P. W. 1 happened to be the Conductor and P. W. 2 happened to be the driver of the Road Transport Corporation Bus, bearing Registration No. APZ 6410 plying between Rapur to Akalivalasa and Akalivalasa to Rapur. ( 5 ) P. W. 1 happened to be the Conductor and P. W. 2 happened to be the driver of the Road Transport Corporation Bus, bearing Registration No. APZ 6410 plying between Rapur to Akalivalasa and Akalivalasa to Rapur. The deceased, the accused, P. W. 3 and P. W. 5 boarded the bus at Akallvalasa. After crossing Gundavolu stage, the accused, who was sitting behind the deceased, stabbed the deceased with a knife indiscriminately. On seeing the incident, the Driver of the bus stopped the bus and all the passengers got down. Then the accused demanded the driver to take the bus to Rapur assuring that he would not cause any harm to him and stating that he had killed the deceased as he was having illicit relations with his wife. ( 6 ) P. W. 2, driver of the bus, drove it to Rapur police station along with P. W. 1, the accused and the dead body of the deceased. They reached Rapur police station at about 4. 00 p. m. where P. W. 1 gave a written report to P. W. 11, who happened to be the Head Constable. On the strength of the said report given by P. W. 1, P. W. 11 registered a case in Crime No. 22/93 under S. 302 of the Indian Penal Code and issued copies of FIR, to all the concerned. ( 7 ) IMMEDIATELY P. W. 11 informed P. W. 12, Inspector of Police about the incident on VHF set. At about 5 p. m. P. W. 12, Inspector of Police, Rural Police Station received copies of FIR, proceeded to police station and recorded the statements of P. Ws. 1 and 2. He secured the presence of P. W. 8 and recorded the confessional statement of the accused. He seized M. O. 1, knife, and M. O. 2, lungi from his possession, which were attached under Ex. 4 Panchanama. ( 8 ) HE went to Akalavalasa village and recorded the statements of P. Ws. 3, 4, 5 and others. He held inquest over the dead body of the deceased on 2-3-1993 in the presence of P. W. 8 and another. Ex. P. 12 is the Inquest report. He also recorded the statements of a few more persons, and prepared Ex. P. 5 observation report in the presence of P. W. 8. He also prepared rough sketch, Ex. P. 13. He held inquest over the dead body of the deceased on 2-3-1993 in the presence of P. W. 8 and another. Ex. P. 12 is the Inquest report. He also recorded the statements of a few more persons, and prepared Ex. P. 5 observation report in the presence of P. W. 8. He also prepared rough sketch, Ex. P. 13. Thereafter the dead body was sent through a police constable, P. W. 13, for post mortem examination. P. W. 9, the Woman Assistant Surgeon, attached to Government hospital, Kovur, conducted autopsy and issued Ex. P. 6 post mortem certificate. She found as many as 10 external injuries on the person of the deceased. According to her the cause of death was due to shock and haemorrhage with multiple injuries to vital organs. ( 9 ) THE accused was having some injuries on the hand. He was also sent to Hospital. P. W. 9 examined and found two incised injuries and issued Ex. P. 7 wound certificate in respect of the injuries found on the person of accused. The accused was arrested on 2-3-1993. Thus, on completion of investigation, the successor of P. W. 12 filed the charge-sheet. ( 10 ) THE defence of the accused is of total denial. ( 11 ) IN order to bring home the guilt of the accused, the prosecution led the evidence of P. Ws. 1 to 13. Certain documents were produced and they were marked as Exs. P. 1 to P. 13. Material Objects were marked as M. Os. 1 to 17. ( 12 ) IN order to prove the fact that the deceased died homicidal death, the prosecution led the evidence of P. W. 12, the Circle Inspector of Police, who conducted inquest over the dead body of the deceased in the presence of P. W. 8 who acted as a mediator. Ex. P. 12 is the inquest report. ( 13 ) AFTER inquest was over, the dead body was sent to P. W. 9, who happened to be working as the Woman Assistant Surgeon, attached to Government Hospital, Kovur, who, on receipt of requisition, conducted autopsy over the dead body of the deceased and noticed the following external injuries. "1. An incised wound of 6 x 2 cm bone deep over right frontal region of the head. 2. "1. An incised wound of 6 x 2 cm bone deep over right frontal region of the head. 2. An incised wound of 5 x 2 cm bone deep over right occipital region of the skull fracture of bone present underneath the injury. 3. An incised wound of 2 x 2 cm bone deep on the right parietal region of the head. Fracture bone present underneath the injury. 4. An incised injury of 4 x 2 x 8 cm. , 2 cm below the clavicle on the lateral 3rd. Fracture of 3rd and 4th ribs present. 5. An incised wound of 2 x 4 x 6 cm, 2 cm above the right clavicle. 6. An incised wound of 4 x 2 cm below the left nipple. 7. An incised wound of 4 x 2 x viscera deep in the right hypochandrium in the midaxially line at the level of 12th rib. 8. An incised wound of 4 x 2 cm muscle deep on the middle of the right scapula. 9. An incised wound of 4 x 2 cm skin deep over the right scapular area. 10. An incised wound of 2 x 1 cm skin deep over the right infrascapular area. "she noticed the following internal injuries :on dissection the underlying tissues of the injuries are congested. All the injuries are ante-mortem in nature. Scalp layers congested. Skull fracture present in the right occipital and right parietal regions. Brain congested. Hyoid bone is intact. Fracture of 3rd and 4th ribs right present. Fracture of 3rd and 4th ribs present. About 100 ml of blood present in the thoracic cavity and cut section congested. An incised wound of 2 x 2 cm present in the upper lobe of right lung. Left lung normal in size and cut section congested. Heart on cut section congested and chambers empty. Stomach contains semi-digested food particles present. 200 ml of blood present in the peritoneal cavity. An incised would of 4 x 2 x 4 cm present in the right robe of liver obliquely placed. No fracture of pelvic walls. Urinary bladder empty. Genital organs normal. No fracture to spine. ( 14 ) SHE opined that the cause of death was due to shock and haemorrhage due to multiple injuries to the vital organs. According to her observation, she issued post mortem certificate, which is produced on record at Ex. P6. No fracture of pelvic walls. Urinary bladder empty. Genital organs normal. No fracture to spine. ( 14 ) SHE opined that the cause of death was due to shock and haemorrhage due to multiple injuries to the vital organs. According to her observation, she issued post mortem certificate, which is produced on record at Ex. P6. She further opined that the injuries noticed on the person of the deceased were sufficient to cause death in the ordinary course of nature. She further deposed that the injuries noticed on the person of the deceased could be caused by a weapon like M. O. 1. ( 15 ) CONSIDERING the evidence led by the prosecution on the point of homicidal death, we do hold that the deceased did die a homicidal death. ( 16 ) IN this case we have the evidence of three eye-witnesses. Out of them P. W. 1, happened to be the Conductor, P. W. 2 happened to be the driver of the bus and P. W. 3 is a passenger who travelled along with the accused and the deceased in the same bus. All these witnesses have stated that when the bus was going from Akalivalasa to Rapur, and after crossing Gundavolu stage, the accused stabbed the deceased with a knife indiscriminately from the backside as the deceased was sitting on the front seat. On seeing the horrible incident, the driver stopped the bus and passengers got down. The incident of stabbing was noticed by P. Ws. 1 and 2. At the direction of accused, P. W. 2 was made to drive the bus to Rapur police station and on reaching Rapur police station, P. W. 1 gave a written report, Ex. P. 1, on the strength of which the offence was registered. ( 17 ) THE evidence of P. W. 1 corroborates the evidence of P. W. 2 on all respects. Further the evidence of P. W. 1 is corroborated by the F. I. R. , given by P. W. 1, which is produced on record at Ex. P1, immediately after the occurence. ( 18 ) WE have one more witness, P. W. 3, who happened to be a co-passenger. He was also an eye-witness to the incident. He deposed categorically that the accused stabbed the deceased indiscriminately from the backside on the vital organs. P1, immediately after the occurence. ( 18 ) WE have one more witness, P. W. 3, who happened to be a co-passenger. He was also an eye-witness to the incident. He deposed categorically that the accused stabbed the deceased indiscriminately from the backside on the vital organs. ( 19 ) CONSIDERING the evidence of three witnesses, we have no hesitation in holding that the prosecution is able to prove that the accused was responsible for causing the death of the deceased. ( 20 ) THE learned defence counsel Mr. S. R. Sunku, appearing on behalf of the accused-respondents herein, submitted at the Bar that there was a grave and sudden provocation given by the deceased himself. The deceased had illicit relations with the wife of the accused, and therefore, the accused was constrained to take revenge against him. It is also submitted by the learned counsel that the accused never denied to have stabbed the deceased, but he stated that because of the provocation given by the deceased he was made to kill the deceased. ( 21 ) WE are not prepared to accept the defence version. It is nowhere suggested to any of the prosecution witnesses the defence which was put forward by the accused. Such defence was raised for the first time while giving statement under Section 313, Cr. P. C. Moreover the facts on record show that there existed illicit relations between the (wife of) accused and the deceased, may be for some time, but on the date of the incident there was no provocation given by the deceased to the accused. In his statement under Section 313, Cr. P. C. it appears that the accused gave a statement stating that his wife was taking bath and the deceased was watching her taking bath. This incident happened in the morning, whereas the accused, deceased and other passengers travelled in a bus at about 1 p. m. Therefore, this defence is not sustainable even if it is accepted that the deceased was watching his wife taking bath. If at all it was a provocation, the provocation must be at that moment only and not after a lapse of about 6 to 7 hours. Therefore, the defence put forward by the accused has to be rejected. ( 22 ) ONE more defence was taken by the accused for the first time while givin g statement under Section 313, Cr. Therefore, the defence put forward by the accused has to be rejected. ( 22 ) ONE more defence was taken by the accused for the first time while givin g statement under Section 313, Cr. P. C. stating that the deceased attacked him and while warding off the blow, he sustained injuries to his palm. He further stated in his statement that he snatched the knife from the hands of the deceased and stabbed him indiscriminately. Such a defence story also appears to be false. It was not at all suggested to any of the witnesses at any point of time in the cross-examination that the deceased started attacking the accused. This defence put forward by the accused is an after-thought taking advantage of the fact that he had sustained very minor injuries to his palm. ( 23 ) IN order to sustain the defence of sudden provocation, the accused has to establish that the provocation was given immediately before the act of stabbing was done. Provocation must be grave and sudden. The emphasis has to be given to the words "grave and sudden". There is a leading case on this point reported in K. M. Nanavati v. State of Maharashtra, AIR 1962 SC 605 : (1962 (1) Cri LJ 521), in which their Lordships were pleased to hold that the defence of grave and sudden provocation is available to the accused if the offence was committed immediately after the provocation and not if committed after lapse of a few hours. ( 24 ) APPLYING the test laid down by their Lordships to the present set of facts, we hold that the accused cannot take the defence of grave and sudden provocation in the given set of facts. ( 25 ) BEFORE concluding the judgment we would like to make a mention of what was done by the investigating agency. P. W. 12 appears to have recorded confessional statement of the accused, which led to the recovery of M. O. 1, knife, M. O. 2, lungi, and M. O. 3, shirt. This cannot be called as discovery under Section 27 of the Evidence Act. M. O. 1 knife was recovered from the possession of the accused at the time of arrest. Leading such evidence in such manner always proves fatal to the prosecution. This cannot be called as discovery under Section 27 of the Evidence Act. M. O. 1 knife was recovered from the possession of the accused at the time of arrest. Leading such evidence in such manner always proves fatal to the prosecution. Therefore, the prosecution has to bear in mind that such type of evidence is not to be brought on record. ( 26 ) CONSIDERING the prosecution story we hold that the finding given by the learned Sessions Judge accepting the defence of the accused, which was put forward by him for the first time while giving statement under Section 313, Cr. P. C. is totally erroneous. Therefore, we hold that the order of conviction and sentence recorded against the accused-appellant of the offence punishable under Section 304, Part-I of the Indian Penal Code is erroneous, and therefore, it is set aside. The accused-respondent is convicted of the offence punishable under Section 302 of the Indian Penal Code and he is sentenced to suffer imprisonment for life. ( 27 ) THE Criminal Appeal is thus allowed. Appeal allowed.