JUDGMENT 1. - The appellant was indicted before the learned Special Judge, Dacoity Affected Area and Additional Sessions Judge, Karauli in Session Case No. 83/94 for having committed murder of Ramji vide judgment dated July 12, 1995. He was found guilty and convicted and sentenced under Section 302 of the Indian Penal Code to undergo imprisonment for life and a fine of Rs. 2,000/- and in default to further suffer six months, simple imprisonment. 2. The prosecution case as pictured during trial was that on September 18, 1994 around 7:30 A.M., informant Kamod PW 2 submitted a written report Ex.P-2 with the Police Station Masalpur stating therein that around 11:00 P.M. in the preceding night he rushed to the house of the appellant on hearing hue and cry where he found Ramji dead having injuries on his head. At that time Smt. Santa PW 7, the wife of the appellant intimated him that the appellant inflicted axe blow on the head of Ramji and fled. A case under Section 302 of the Indian Penal Code was registered and investigation commenced. Inquest Report Ex.P-4 was drawn. Autopsy on the dead body of deceased was conducted. Site was inspected and other necessary memos' were drawn. Statements of the witnesses under Section 161 Cr.P.C. were recorded. The appellant was arrested and on the basis of his disclosure statement axe allegedly used in commission of the offence was recovered. On completion of the investigation, charge - sheet was filed. In due course the case came up for trial before the learned Special Judge. Charge under Section 302 of the Indian Penal Code was framed. The appellant denied the charge and claimed trial. The prosecution examined as many as 11 witnesses in support of its case. In the explanation under Section 313 Cr.P.C., the appellant claimed innocence. No witness was however examined in defence. The learned trial judge on hearing the final submissions, convicted and sentenced the appellant as indicated here-in-above. 3. Mrs. Alka Bhatnagar, learned counsel appearing for the appellant vehemently canvassed that the appellant could not have been convicted as only eye - witness in the case Smt. Santa PW 7 did not toe the line of the prosecution story and was declared hostile. But the learned Court below placing reliance on the statement of Santa and considering the other circumstances, convicted and sentenced the appellant and committed illegality. 4. Per contra Mr. But the learned Court below placing reliance on the statement of Santa and considering the other circumstances, convicted and sentenced the appellant and committed illegality. 4. Per contra Mr. S.S. Rathore, learned Public Prosecutor supported the impugned judgment and urged that entire testimony of Smt. Santa cannot be discarded. Her conduct immediately after the incident was relevant and was rightly considered in convicting the appellant. 5. In order to appreciate the rival submissions, we have closely scrutinised the material on record. 6. Kamod PW 2 in his deposition stated that he had gone to the house of the appellant and had found Ramji lying dead on the cot. At that time the wife of the appellant was weeping. On being inquired she told that appellant Munna inflicted axe blow on the head of Ramji as a result of which Ramji died. She further informed that after inflicting the blows Munna fled. Kamod further stated that Ramji had illicit relation with the wife of the appellant and that is why he was killed. 7. Bhaggi @ Bhajji PW 3 stated that on being inquired, the wife of the appellant intimated him that after inflicting axe blow on the head of Ramji, Munna fled. Dr. H.M. Meena PW 4 conducted autopsy on the dead body of Ramji and as per post-mortem report Ex.P-8, following two injuries were found:- (1) Incised wound 8 cm. x 2 - 1/2 cm. x 5 cm. on the fronto-parietal region of left side. 6cm. away from left ear. Frontal and parietal bones fractured and sharply cut seen with naked eye. The nature of wound is grievous due to sharp instrument. Bleeding present from wound. (2) Incised wound 12 cm. x 3 cm. x 4 cm. on the left parietal region. Bleeding continue. Fracture of parietal bone is clean cut seen with naked eye. The nature of wound is grievous due to sharp instrument. The injuries were ante-mortem in nature and cause of death was cerebral hemorrhage. 8. Santa PW 7 in her deposition stated that on the night of the incident she was alone and Ramji slept in her house. She further stated that the appellant did not inflicted any injury with axe on the person of Ramji. She was declared hostile. She was cross-examined by the Court and in the cross-examination she admitted that Ramji came to her house around 8:00- 9:00 RM. She further stated that the appellant did not inflicted any injury with axe on the person of Ramji. She was declared hostile. She was cross-examined by the Court and in the cross-examination she admitted that Ramji came to her house around 8:00- 9:00 RM. and asked her to accompany him. She had illicit relationship with Ramji for the last 2 - 3 years and on the date of incident Ramji committed sexual intercourse with her and made proposal to her to accompany him. 9. Radhey Shyam PW 8 and Bihari PW 9 are the Motbirs of recovery of axe and they put their signatures on recovery memo Ex.P-6. Shugar PW 10 stated that when he reached at the site, Santa informed him that Munna killed Ramji with axe. 10. From the above discussion, following sailent features of the case appear:- (i) Santa, the wife of the appellant had illicit relationship with deceased Ramji. (ii) On the date of incident Ramji visited Santa and committed intercourse with her and asked her to accompany him so that they may live as husband and wife. (iii) As per site plan Ex.P-5, dead body of Ramji was found on a cot and there was a pool of blood under the cot. (iv) Immediately after the incident Santa informed the gathering that her husband Munna killed Ramji with axe. (v) On the basis of disclosure statement of the appellant, axe allegedly used in commission of the offence was recovered which was stained with human blood according to F.S.L. Report Ex.C - 1. 11. Coming to the judgment of learned trial Judge it may be noticed that in convicting the appellant, learned trial Judge placed reliance on the statements of Santa PW 7, Kamod PW 2, Bhaggi @ Bhajji PW 3, Radhey Shyam PW 8, Bihari PW 9 and Snugar PW 10. As per Site Plan Ex.P-5 dead body of Ramji was found on a cot and there was a pool of blood under the cot. It, therefore, appears that the injuries on the head of Ramji were inflicted while he was sleeping on the cot. It is established that Ramji visited the house of the appellant in his absence, committed sexual intercourse with Santa and slept on the cot. It, therefore, appears that the injuries on the head of Ramji were inflicted while he was sleeping on the cot. It is established that Ramji visited the house of the appellant in his absence, committed sexual intercourse with Santa and slept on the cot. Although Santa at the trial, disowned her previous statement given to the police but in the cross examination she admitted that she had illicit relationship with the deceased and on the date of incident deceased committed sexual intercourse with her. We do not see any reason to disbelieve the testimony of Bhaggi @ Bhajji, Radhey Shyam, Bihari, Shugar and Kamod who categorically deposed that Santa informed that her husband Munna killed Ramji with axe. Their testimony in regard to the conduct of Santa immediately after the incident is relevant under Section 8 of the Indian Evidence Act, 1872 and learned trial Judge rightly placed reliance on it. From the evidence we find that the appellant inflicted axe blows on the head of Ramji. 12. Now it is to be seen as to what offence was committed by the appellant. As already noticed by us that the deceased visited the house of the appellant in his absence and after committing sexual intercourse with the wife of the appellant, Ramji was sleeping on the cot. It thus appears that on seeing his wife sleeping with Ramji on the cot, the appellant got provoked and lost self control and in the heat of passion inflicted axe blows on the head of Ramji. 13. At this juncture we intend to consider Exception I appended to Section 300 IPC which provides thus : "Exception I - 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 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 of the powers of such public servant. 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." 14. The Division Bench of Jammu and Kashmir High Court in Kartar Chand v. State, 1987 (1) Crimes 23 had occasion to consider the facts where the accused had gone to the jungle alongwith other villagers in order to help Bishamber Dass for obtaining fire - wood required in connection with the marriage of the daughter of Bishamber Dass on 22.3.1980. When he came back at his residence, he was informed by his wife Smt. Krishna that Lakmi Chand deceased had made his daughter Bimia to set close to him with bad intention. On hearing it the accused - appellant went to the shop of Sardari lal but did not find Lakmi Chand there whereafter he went to the house of Prabdayal where he found Lakmi Chand sitting there and asked him to accompany him to his house. Lakmi Chand went to his house whereafter appellant brought an axe from his own house and inflicted injuries on his person which ultimately resulted in his death.The Division Bench held that where the accused caused death of the deceased under sudden provocation on coming to know that his minor daughter was ravished by him which deprived him of his self control, the offence would amount to culpable homicide not amounting to murder. 15. Allahabad High Court in yet another case of Akhtar v. State, AIR 1964 Allahabad 262 indicated thus:- "In determining whether an accused person was overwhelmed by a grave and sudden provocation, the Courts in this country do and must Investigate whether the offender acted reasonably or normally or properly, as an average person in the position and circumstances of the offender may be expected to do, until the point of time at which the offender is actually deprived of his power of self - control. But, once his power of self - control has been lost, it would be futile to expect him to retain such a degree of control over himself as to exercise a choice over the weapon used by him for an attack or to show that his "mode of resentment" bore "a reasonable relationship to the provocation" which operated upon him." 16. Gujarat High Court in State of Gujrat v. Bhand Jusub Mamad, 1982 Cr.L.J. 1691 observed as under:- "When a person loses the self - control under "grave and sudden" provocation, he loses all faculties of calculation and balance of mind and the Court would not weigh in golden scales as to how many blows would be sufficient to convince a Court that the act done by the accused was under "grave and sudden" provocation and where he exceeded a particular number of blows, the act would be out of the category of "grave and sudden" provocation. When one loses the mental faculty by gravely provoked, one would not go on calculating the blows. The very callous act of giving blows continuously clearly goes to show that the `self - control' was lost under the shadow of `provocation' and, therefore, the number of blows would never be material to consider the impact on the mind of the accused so as to take him out of Exception I to Section 300." 17. In the instant case as already noticed by us that on seeing his wife with the deceased on the cot, the appellant might have deprived of self control on account of the sudden provocation given and committed callous act of giving two blows on the head of the deceased with axe. We are thus of the view that the case of the appellant comes under the purview of Exception I to Section 300 of the Indian Penal Code. We thus hold the appellant, who has been remanded in custody since October 7, 1994 and remained in jail throughout, guilty under Section 304 Part I of the Indian Penal Code. 18. As a result of the foregoing discussions, we partly allow the appeal of the appellant. We set aside the conviction and sentence of the appellant under Section 302 IPC. Instead we convict him under Section 304 Part I of the Indian Penal Code and sentence him to suffer the period already undergone by him in custody. 18. As a result of the foregoing discussions, we partly allow the appeal of the appellant. We set aside the conviction and sentence of the appellant under Section 302 IPC. Instead we convict him under Section 304 Part I of the Indian Penal Code and sentence him to suffer the period already undergone by him in custody. The appellant is in jail. He shall be set at liberty forthwith, if not required in any other case.Appeal partly allowed. *******