JUDGMENT 1. - The appellant and his brother Sudama faced trial in Sessions Case No. 201/2002 under Section 302,302/34 and 447 Indian Penal Code in the court of learned Additional Sessions Judge No. 2, Deeg (Bharatpur). Learned Judge vide judgment dated November 21, 2002 gave benefit of doubt to Sudama and acquitted him of all the charges but convicted and sentenced the appellant as under:- Under Section 302 IPC: To suffer Imprisonment for life and fine of Es. 500/-, in default to further suffer Rigorous Imprisonment for ten days. Under section 447 Indian Penal Code : To suffer Rigorous Imprisonment for three months. Substantial sentences were directed to run concurrently. 2. The prosecution story as unfolded during trial is that on November 2, 1996 when the informant Net Ram, his brother Ram Dayal (now deceased), along with his father and another brother were ploughing their field, the appellant came to the field and asked not to plough it. On being protested by Ram Dayal, Bharti opened fire with katta (country made gun) that hit.on the navel of Ram Dayal, who died instantly. Net Ram lodged written report with the Police Station Sikri and a case under Sections 302/34,447 Indian Penal Code and 3/25 Arms Act was registered and investigation commenced. On completion of investigation charge sheet was filed and in due course of the case came up for trial before the learned Additional Sessions Judge, No. 2 Deeg. Charges under Sections 302 and 447 Indian Penal Code was framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 15 witnesses. In the explanation under section 313 Cr.P.C., the appellant claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing the final submissions convicted and sentenced the appellants as indicated hereinabove. 3. We have heard the submissions advanced before us and perused the record. 4. The fact that death of Ram Dayal was homicidal is not disputed. Dr. Daulat Ram Patel (Pw.3), who performed autopsy on the dead body deposed that injuries were antemortem in nature. Cause of death of the deceased was haemohrragic shock of injury No. 1 caused by fire arm. The said injury was sufficient in the ordinary course of nature to cause death. Dr. Daulat Ram Patel (Pw.3), who performed autopsy on the dead body deposed that injuries were antemortem in nature. Cause of death of the deceased was haemohrragic shock of injury No. 1 caused by fire arm. The said injury was sufficient in the ordinary course of nature to cause death. As per post mortem report (Ex.P-9) following injuries were found on the dead body : "(i) Multiple entrance wound (lacerated) about 60 in number present on right side of lower abdomen & on groin spreading in area of 17 cros. (6 cm above to anterior superior illiac spine - 11cm below it) 17 x 20cm. (7cm outer & 13 cm medial to anterior superior iliac spine. Shape are oval to round .25 to 0.4 cm in diameter individually present margin inverted No blackening and tattoing present only clotted blood present. Margin are irregular. The Baniyan having multiple hole corresponding to injuries & corresponding hole also present over underwear (chaddi) depth some over having skin deep & some are cavity deep & muscle deep direction anterior to posterior. (v) Clothes are sealed & sent to chemical examiner, pellets are preserved and scaled. (2) 13 multiple entrance wound on Anterior surface of right forearm spreading in area of 11x8 cm 12 are present below the elbow joint while one is on elbow joint 2cm above. Shape are round to oval .25 to .3cm diameter margin are irregular & inverted. No blackening & tattooing present. Only clotted blood present. Depth skin to muscle deep injuries are antemortem in nature & caused by fire arm weapon. Clothes are preserved and sealed for Chemical examination & sent to forensic laboratory Jaipur. The Ba;uyan and Chaddi having multiple hole corresponding to injuries." 5. The learned trial judge based the conviction of the appellant on the evidence of informant Net Ram (Pw.1), Ram Swaroop (Pw.2) and Gopal (Pw.6). The presence of these witnesses on the scene of occurrence has not been doubted and it impelled the trial judge to hold these witnesses as eye witnesses of the incident. 6. Having closely scrutinised the evidence of Net Ram (Pw.1) from the point of view of trustworthiness, we find his presence at the time of incident quite natural. According to him on the fateful day he along with Ram Swaroop, Ram Dayal and Gopal had gone to his field bearing khasra No. 536. 6. Having closely scrutinised the evidence of Net Ram (Pw.1) from the point of view of trustworthiness, we find his presence at the time of incident quite natural. According to him on the fateful day he along with Ram Swaroop, Ram Dayal and Gopal had gone to his field bearing khasra No. 536. Nek Ram started ploughing the field with the help of tractor and Ram Swaroop, Ram Dayal and Gopal proceeded to erect boundary (dol) of the field. Then they found Bharti sitting in the middle of the field. His three brothers Sudama, Keshar and Hari were also with him. When the informant was asked not to plough the field by them, Ram Dayal protested. IN the meantime Bharti took out Katta and opened fire that hit on the navel of Ram Dayal, who fell down and died. Ram Dayal was taken to the hospital where police had arrived. Ram Swaroop (Pw.2) and Gopal (Pw.6) corroborated the testimony of Nek Ram. On a complete and comprehensive appreciation of all vital features and the entire evidence with broad and reasonable probabilities of the case we find that the ocular testimony about time and place of the incident is reliable. 7. Mr Ashish Joshi, learned Amicus Curiae, canvassed that case does not travel beyond Section 304 Part I Indian Penal Code since Exception Ito Section 300 Indian Penal Code is attracted. The appellant acted suddenly and in the heat of passion being provoked by the deceased. From the evidence of Ram Swaroop, Gopal and Nek Ram it is evident that the complainant party was forcefully entered the field and started ploughing it and when the appellant and his brothers asked them not to plough the field they did not care and the deceased persuaded Nek Ram to continue the act of ploughing. 8. We find no substance in the contention. Exception Ito Section 300 Indian Penal Code applied only if death is caused during the time the offender is deprived of the power of self-control as a result of grave and sudden provocation. The degree of the loss of power of self-control envisaged is that a reasonable person having regard to the degree of gravity of the provocation. Exception Ito Section 300 Indian Penal Code applied only if death is caused during the time the offender is deprived of the power of self-control as a result of grave and sudden provocation. The degree of the loss of power of self-control envisaged is that a reasonable person having regard to the degree of gravity of the provocation. If the degree and duration of the loss of power of self control are not commensurate with the degree of gravity of provocation, benefit of Exception I to Section 300 IPC, can not be availed of by the offender. The defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm but his intention to do so arise from sudden passion involving loss of self control by reason of provocation. An accused person claiming the benefit of Exception Ito Section 300 Indian Penal Code must probablise the following facts : (i) that he received provocation; (ii) which was grave; (iii) sudden; (vi) he was deprived of the power of self control by it, and (v) while still in that state of mind and before he had cooled down, caused the death of the person who provoked him. The explanation at the end of the exception enjoins that question whether the provocation was grave and sudden should be treated as question of fact. It follows therefore that each case must be considered according to its own facts. In the case on hand, as already noticed it- appellant had intention to inflict injuries actually suffered by Ram Dayal. When the appellant entered the field he was armed with Katta which was concealed under his clothes. Ram Dayal said nothing that could provoke the appellant. On being exhorted by the appellant not to plough the field, Ram Dayal only asked the informant to continue the act of ploughing. The appellant then pulled Katta out of his clothes and opened fire that hit on the vital part of the body of Ram Dayal and he died instantly. The injuries sustained by Ram Dayal were found to be sufficient in the ordinary course of nature to cause death. The ingredients of clause thirdly of Section 300 Indian Penal Code are fulfilled and the appellant was rightly convicted and sentenced under section 302 IPC. The injuries sustained by Ram Dayal were found to be sufficient in the ordinary course of nature to cause death. The ingredients of clause thirdly of Section 300 Indian Penal Code are fulfilled and the appellant was rightly convicted and sentenced under section 302 IPC. The prosecution has also established beyond reasonable doubt that complainant party was in lawful possession of the field and the appellant by forcefully entering in the field committed criminal trespass. Thus guilt of the appellant under Section 447 Indian Penal Code is also established. 9. For these reasons, we do not find any merit in this appeal. The same is dismissed and the conviction and sentence passed by the learned trial court are confirmed. We record our appreciation for the assistance provided by the Amicus Curiae.Appeal Dismissed. *******