Judgment ( 1. ) THE appellant has preferred this Jail Appeal against the impugned judgment and order dated 25-2-97 passed by the learned Additional Sessions Judge, Dindori (Mandla) in the Session Trial No. 129/95 whereby he has been held guilty of offence under Section 302, IPC and sentenced to life imprisonment for committing murder of his wife Jithiya Bai. ( 2. ) SUCCINCTLY narrated the facts of the prosecution case are that on 13-5-95 in the morning, Village Kotwar Aaitu Ram Baiga (P. W. 1) was informed at his residence by Mitthu Baiga (P. W. 3-A) and Dasaru (not examined) that accused Samaru Baiga came and informed them by way of extra judicial confession that he had seen his wife Jithiya Bai (deceased) and Basora Gond (not examined) in a compromising position in a rivulent known as mohgaontola Nala therefore, he killed heron 12-5-95 at 15 hours. On receipt of this information, Aaitu Ram Baiga along with Mitthu went to the place and saw Jithiya Bai lying dead in supine position and bleeding from her head. Accordingly, he lodged an FIR of the incident at Police Station, Shahpur, on 13-5-95 whereupon an offence under Section 302, IPC was registered against the accused/appellant, and taken for investigation. The Investigating Officer recorded the Marg (Ex. P-2) and prepared the spot map (Ex. P-3) on 13-5-95 itself. Inquest Panchayatnama (Ex. P-4), also prepared on the same day, attributed the injuries present on the body of the deceased Jithiya Bai, only to accused Samaru. Memorandum (Ex. P-5) of the accused under Section 27 of the Evidence Act, led to discovery of weapons of offence namely, a piece of wooden baton and three stone pieces lying on the spot of incident which were seized as per Ex. P-6. Other incriminating articles i. e. , plain and washed off earth, 50 gms each and 4 pieces of red bangles were also seized from the spot of the incident as per Ex. P-7. Vide Ex. P-8 a blood-stained stone-piece, plain and blood-stained earth, were seized from near the dead-body. Clothes of the accused, which he was wearing on the date of incident, namely, a white half baniyan and a lungi, sporadically stained with blood were seized vide Ex. P-9. Further, hair of the deceased allegedly pulled out of her head were seized vide Ex. P-10, from the spot of incident. Clothes of the accused, which he was wearing on the date of incident, namely, a white half baniyan and a lungi, sporadically stained with blood were seized vide Ex. P-9. Further, hair of the deceased allegedly pulled out of her head were seized vide Ex. P-10, from the spot of incident. The decomposed body of the deceased with maggots were sent for Forensic opinion vide Ex. P-11. Viscera of the dead-body were seized vide Ex. P-12. The Autopsy Surgeon (P. W. 8) gave the post-mortem report vide Ex. P-16. He opined that the death had taken place between a period of 3-5 days. He found the body highly decomposed with maggots eaten cavities. Injuries were anti-mortem in nature and could be caused by some hard and blunt object. Looking to the nature of calp wound, the doctor opined that the death resulted from the injury to brains caused by fracture of the scalp. The said injury was found to be sufficient to cause death. After a complete investigation, a challan was laid, and charge, drawn up for offence under Section 302, IPC. The learned Additional Sessions Judge, Dindori, on a proper appreciation of evidence on record and in particular, relying on the evidence of independent witnesses, namely, Aaitu Ram (P. W. 1), Phool Chand (P. W. 2), Mitthu (P. W. 3-A) and Daduram (P. W. 4) found the prosecution story duly proved beyond reasonable doubt and therefore, recorded the aforcsaid conviction and sentence against the accused. ( 3. ) KU. Jyoti Agnihotri, learned Counsel appearing for the appellant apart from assailing the impugned judgment on other grounds submitted that on totality of circumstances, it is appears to be a case of sudden and grave provocation, and therefore, the accused ought not to have been held guilty of offence under Section 302, IPC. On the other hand, Shri S. K. Rai, learned Panel Lawyer for the State submitted that the accused had a strong motive to commit murder of his wife. He countered the defence pleas and contended that looking at the time of assaults after seeing the deceased in compromising position with some other man, the accused had time to think over and cool down. Thus, it does not come under the exception of grave and sudden provocation. Mr. He countered the defence pleas and contended that looking at the time of assaults after seeing the deceased in compromising position with some other man, the accused had time to think over and cool down. Thus, it does not come under the exception of grave and sudden provocation. Mr. Rai defended the impugned judgment of conviction under Section 302, IPC by placing heavy reliance on the testimony of independence witness Phool Chand (P. W. 2) is the sole eye-witness of actual assaults, apart from extra-judicial confession leading to discovery of incriminating articles. ( 4. ) ON reappreciation of rival contentions and reappraisal of the evidence on record, we need hardly say that there arc enough discernible positive evidence in favour of the prosecution to inculpate the accused for killing his wife. There was a strong motive for the offence as the accused suspected the fidelity of the deceased which is fully established by his extra-judicial confession, leading to discovery of her dead body and the weapons of the offence. According to Village Kotwar Aaitu Ram (P. W. 1), he was informed by Mitthu (P. W. 3-A), that the accused had admitted to have killed his wife, on seeing her in a compromising position with her paramour in a rivulet. He visited the place with Mitthu and not with Dasaru and saw the dead-body lying there. He also mentioned that accused Samaru had accompanied him to the police station for lodging a report of the incident at about 12 oclock and on interrogation the accused had disclosed about the weapons of offence namely; a baton piece and stones, which were seized by the police. He stated that the place where the dead-body was lying was different from the scene of occurrence but it was visible from there. The deceased was beaten to death in the field of one Mangal but her dead-body was located lying in a dry rivulet. Phool Chand (P. W. 2) an eye-witness, hearing her cry had come out and had seen from a distance of about 200 meters that the deceased was being assaulted and dragged by the accused/appellant from the side of his house to the village. He forbade the accused from doing so but such type of incidents being a regular feature between the couple, he could not visualise the seriousness of the situation and hence, refrained from intervening in the matter. He forbade the accused from doing so but such type of incidents being a regular feature between the couple, he could not visualise the seriousness of the situation and hence, refrained from intervening in the matter. He mentioned that the scene of occurrence was a deserted place and the place of location of the dead-body was quite far from there. He had seen the incident of beating at 12 oclock and in the evening, he had been informed about the death. ( 5. ) ACCORDING to witness Mitthu (P. W. 3-A), accused had only admitted to have beat his wife to death and said nothing about the time and scene of occurrence. He did not ask him anything. The accused was kept lodged in the house of Dasaru whole night. According to Daduram (P. W. 4), on Tuesday he had gone to Bijora and on next day he had come back. The accused, his wife and one Basora (paramour of the deceased - not examined) had also gone to Village Bijora. This witness received the information about the death only on Thursday. According to R. K. Tripathi (P. W. 5), the Investigating Officer, the report was recorded at 12-5-97 in the day time. He admitted that on 13-5-97 and 14-5-97, he had completed all Panchnamas and effected seizures thereunder. He had seized a baniyan and a lungi from the accused which were stained with blood marks. The witness has not been cross-examined on that point. Dr. V. K. Saklya (P. W. 8) is the Autopsy Surgeon. In his cross-examination, he reiterated fracture of scalp and concentration of blood in membranes. He clarified that death had occurred within a period of 3-5 days prior to the date of post- mortem. In his 313 statement, the accused denied his involvement and pleaded that he has been framed up. ( 6. ) THUS, all that it appears from analysis of the evidence as above is that the accused suspected the fidelity of his wife and having seen her in compromising position with her paramour lost his balance and beat her to death. Under the circumstances, the defence plea of grave and sudden provocation can not be slurred over. ( 7. ) THUS, all that it appears from analysis of the evidence as above is that the accused suspected the fidelity of his wife and having seen her in compromising position with her paramour lost his balance and beat her to death. Under the circumstances, the defence plea of grave and sudden provocation can not be slurred over. ( 7. ) THE Apex Court in the matter of State of U. P. v. Lakhmi, (1998) 4 SCC 336 , held that in case where accused husband killed his wife on seeing something lascivious between her and another person when he returned to his house from the field, the offence was covered under Exception 1 to Section 300 of the IPC. Therefore, the conviction was altered to Section 304-I. ( 8. ) IN the premises discussed hercinabove, the conviction of accused under Section 302, IPC and the sentence of life imprisonment as also a fine of Rs. 100/- thereunder arc set aside and instead, he is held guilty of offence under Section 304-I, IPC and sentenced to 6 years R. I. and fine of Rs. 500/ -. In default of payment of fine, he shall further undergo simple imprisonment for 3 months. As the appellant is in jail since 15-5-95 and has undergone the jail sentence of six years rigorous imprisonment, he shall be released forthwith, if not wanted in connection with any other case. Accordingly this criminal appeal is allowed in part.