JUDGMENT 1. Heard learned counsel for the appellant and learned Public Prosecutor. 2. The incident involves death of Rani W/o Iqbal Singh. The background suggests that the relations of the couple were strange. One of the reasons of strange relation was that the husband suspected promiscuous conduct of the lady deceased. The husband had reservations about the lady frequently meeting with other persons. On the fateful date, the earlier landlord where the deceased and the accused lived as tenants had come in the morning. What has been given out that he demanded rent, which was not paid. Accused suspected that his wife h.ad relation with the landlord. She was favouring payment to him. Husband opposed to it. It is stated that accused-Iqbal and deceased-Rani entered a duel on this. The duel having started, Iqbal picked up a 'Ghota' lying nearby and gave blow on -the head of deceased-Rani, which resulted into her death. 3. Learned counsel for the appellant fairly conceded that incident cannot be disputed, but he urged that the premeditation being absent and the incident having occurred on the spur of the moment, no offence of murder would be made out. It was virtually because of presence of the earlier landlord with whom the husband has suspected infidelity of wife, this created trouble between the husband and wife and the temper of the husband ran high. Whatever was available there with the husband, he picked up the same and inflicted blows on the head of the deceased. The incident cannot be said to be of the nature, which can be covered in the offence defined under section 300 Indian Penal Code. Exception to Section 300 Indian Penal Code can be enough into operation to dilute the offence. According to learned counsel for the appellant, it was a case of inflamed feeling at the spur of the moment. The act of the accused to hit the deceased with a weapon, cannot be said to be of any, consequence because the size of 'Ghota' is not even more than a feet in length. Nobody who would intend to cause death would use such a. small kitchen implement as weapon. Thus, according to learned counsel for the appellant, the case of the appellant is not covered in any of the illustration defined under section 300 Indian Penal Code. 4. Nobody who would intend to cause death would use such a. small kitchen implement as weapon. Thus, according to learned counsel for the appellant, the case of the appellant is not covered in any of the illustration defined under section 300 Indian Penal Code. 4. The learned counsel for the appellant submits that broadly, the case of the accused was covered by exception (1) to Section 300 Indian Penal Code wherein the presence of any person who was not welcome in the family had occurred on account of the alleged demand for rent to which the lady favoured for paying and the appellant was not prepared to pay. On this, the dispute started and naturally the husband being incharge of the family, would be responsible whether the payment should be made or not, In that situation, when the wife objected, then he got provoked and in that provocation he caused, injuries on the person of the deceased. 5. Learned Public Prosecutor, on the contrary, submitted that the accused is responsible for causing injuries. There was no sufficient provocation, which would bring the case of the accused within exception (1). 6. We have considered the rival submissions and in our careful consideration the occurrence has not been disputed. We have to look upon whether the incident had occurred in a fashion which is covered by exception (1) in favour of the accused. There was third person present between the husband and wife. The person was not welcome person. He demanded money for something for which the husband felt that he does not deserve. Therefore, consideration being that there was a feeling in the mind of the husband that there was some permissiveness in the conduct of the lady towards that man, the.bond of marriage had already weakened with the presence of third person. Presence of third person is here. In that view of the matter, the illustration mentioned in exception (1) of Section 300 would be available to be pressed against the accused. The case would broadly be covered under exception (1) to Section 300 Indian Penal Code. That being the position, the offence under section 300 Indian Penal Code cannot be made out, which makes it clear that no offence punishable under section 302 is made out. The case would broadly be covered under exception (1) to Section 300 Indian Penal Code. That being the position, the offence under section 300 Indian Penal Code cannot be made out, which makes it clear that no offence punishable under section 302 is made out. The case made out against the accused would fall under section 304 Part I. The implement being used was a kitchen tool in an .unpremeditated assault, with one feet long wooden 'Ghota'. Therefore, we think it proper that the accused may be sentenced to 8 years' rigorous imprisonment. 7. Therefore, with this modification in offence, the appeal of the appellant is partly allowed. The conviction and sentence passed against the accused under section 302 are set aside and .the accused is convicted under section 304 Part I and sentenced to undergo imprisonment of 8 years and is further directed to pay a fine of Rs.500/-.Appeal partly allowed. *******