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2006 DIGILAW 538 (CAL)

GANESH BAHADUR KHAWAS v. STATE OF WEST BENGAL

2006-08-25

PARTHA SAKHA DATTA, PRAVENDU NARAYAN SINHA

body2006
P. S. DATTA, J. ( 1 ) THIS is an appeal directed against the judgment of conviction dated 24. 07. 1998 and order of sentence dated 27. 07. 1998 passed by learned Additional Sessions Judge, 1st Court, Siliguri under section 302 of the IPC sentencing the appellant to suffer rigorous imprisonment for life and to pay a fine of Rs. 2,000/- in default to suffer rigorous imprisonment for two years in Sessions Case No. 19 (5)/1996 corresponding to Sessions Trial no. 4/96. ( 2 ) THE facts were these: the wife of the deceased Smt. Lila Tamang lodged a written complaint with the O. C. Sukna Police Outpost at 3. 25 p. m. on 2. 6. 1996 alleging that at 2. 30 p. m. on 2. 6. 1996 when her husband Ganey Bahadur Tamang had gone to the house of the appellant who lived in the same locality as that of her the appellant hit her husband by an axe on his head and thereby caused his death. The appellant who started fleeing away from his house where murder of her husband was committed was apprehended by the villagers and then tied with a mango tree as a result of which the appellant sustained injuries in his legs. ( 3 ) INQUEST was held by P. W. 16 S. I. , Swapan Kumar Ghosh at 5 p. m. on 2. 6. 1996 in the room of the appellant where deadbody was found lying on the earthen floor of the house and one deep wound 3" with active bleeding on the backside of head was noticed. P. W. 14 Dr. Saibal Gupta directed P. W. 15 dr. Biswanath Kahali to conduct post-mortem examination on the body of the deceased and he was present at 3 p. m. on 2. 6. 1996 when P. W. 15 Dr. Kahali conducted the post-mortem examination. Dr. Kahali (P. W. 15) proves the post-mortem report (Ext. 9) and found the following injuries : "one chop wound (incised wound with bruised margin caused by any sharp-cutting weapon with sharp edge), 4" x 0. 8" x bone deep placed on the postero-lateral side of scalp in left side obliquely extending from left parietal eminence to mastoid process over left temporal region. The scalp hairs structures of scalp including muscles vessels and nerves were cleanly cut, therewith incised sharp regular bruised margin. 8" x bone deep placed on the postero-lateral side of scalp in left side obliquely extending from left parietal eminence to mastoid process over left temporal region. The scalp hairs structures of scalp including muscles vessels and nerves were cleanly cut, therewith incised sharp regular bruised margin. Evidence of clean cut over left parietal and temporal bone noticed measuring 2. 8" x 0. 3" x 0. 2" (only involving outer table ). " ( 4 ) BESIDES P. W. 14 and P. W. 15 we have before us 14 other witnesses of whom evidence of P. W. 9 Subrata Bhattacharya and P. W. 10 Jiban Tamang related to the seizure of the blood-stained wearing apparels of the deceased under a seizure list effected by P. W. 16 Swapan Kumar Ghosh who is the i. O. P. W. 8 Dilmaya Khawas was tendered for cross-examination which was declined. P. W. 12 Haridas Moitra, an expert of forensic science proves the fsl report (Ext. 6) according to which blood was detected in all eight exhibits namely axe, piece of hair, glass phial, full shirt, ganjee, half pant, zangia, cotton wool - all belonging to the deceased. The report is further that since blood-stains in the exhibis were all found disintegrated their origin could not be determined. No cross-examination was done of this witness. P. W. 13 Dhan Kumar Roy is a constable who carried the deadbody to North bengal Medical College and Hospital under a command certificate (Ext. 7)for the purpose of post-mortem examination. ( 5 ) OF the remaining 11 witnesses P. W. I Sarmon Rai is the scribe of the fir who did so on being instructed by P. W. 2 Lila Tamang, the wife of the deceased and P. W. 5 Rabin Chettri and he says that he found the accused being tied with a mango tree and witnessed the holding of inquest. P. W. 4 tek Bahadur Mongar was returning from a cinema hall when he heard from villagers and P. W. 3 Bir Bahadur Tamang that the appellant had killed ganey Bahadur Tamang at 2. 30 p. m. on 2. 6. 1996. On hearing the incident he gave the information by rushing to Sukna Police Outpost and again returned back to the place of occurrence sharp when police also came and became a witness to the inquest held by P. W. 6. 30 p. m. on 2. 6. 1996. On hearing the incident he gave the information by rushing to Sukna Police Outpost and again returned back to the place of occurrence sharp when police also came and became a witness to the inquest held by P. W. 6. Importantly, the house of this witness and that of the accused are having common Courtyard. ( 6 ) THE fate of the prosecution case as also of the appeal will depend upon whether we accept the oral evidence of P. W. 5 Rabin Chettri to be credible and the credibility of this witness has been challenged by the defence on account of his being a child witness who claims to have witnessed the incident. But before we go into the details of evidence of P. W. 5 we begin with evidence of P. W. 2 Lila Tamang who though not an eye-witness to the incident found the accused fleeing away after he had come to the place of occurrence on being informed of by P. W. 5 Rabin Chettri. She says that the accused called her husband to his house and struck him by an axe on his head and neck and Rabin aged about 10 years old rushed to her and told her about the incident and when she came to the place of occurrence she found the accused fleeing but the villagers assembled and caught hold of him and tied him by a rope with a mango tree. It is her evidence that she narrated the incident to P. W. 1 who wrote down the complaint (Ext. l ). P. W. 3 Bir bahadur Tamang says that on hearing hue and cry he came out of his house and saw many people chasing the accused who was trying to fleeing away towards the jungle. He also joined the people to chase the accused who was apprehended and tied by a rope with a tree. The accused confessed in his presence that he had killed Ganey Bahadur Tamang and he saw his deadbody in the hut of the accused. He was also a witness to the inquest. It appears from his cross-examination that his house is at a distance of 10 ft. away from the place of occurrence. The accused confessed in his presence that he had killed Ganey Bahadur Tamang and he saw his deadbody in the hut of the accused. He was also a witness to the inquest. It appears from his cross-examination that his house is at a distance of 10 ft. away from the place of occurrence. P. W. 6 Raju Tamang who :s a post-occurrence witness says in his evidence that hearing hue and cry he came out of the house and found the accused being tied with a tree by a rope by the villagers and on entering the room of the accused he found Ganey Bahadur lying dead therein with injury on his head. His further evidence is that the accused confessed his guilt before the villagers. In his cross-examination he said that he does not know what was the version of the police with the accused as well as the villagers. We shall come to the analysis of this piece of evidence when we will be dealing with the point of extra-judicial confession said to have been made by the accused before the members of the public after having been apprehended and tied by a rope with a tree. P. W. 7 Kanchi tamang is also a post-occurrence witness as she says that on hearing hue and cry she came out of her house and found Rabin Chettri (P. W. 5) disclose that the accused had called the deceased to his house and killed him. She found the accused tied with a tree by a rope and he confessed before the villagers that he had killed the deceased. She found the deadbody of the deceased inside the house of the accused. This piece of evidence that she found the deadbody of the deceased inside the house of the accused is reiterated in her cross-examination. Her house is at a distance of 10 cubits away from the place of occurrence. P. W. 11 Smt. Asha Lama whose house, according to her statement in cross-examination, is at the distance of 10 to 20 cubits from the house of the accused says that on getting the news from p. W. 5 Rabin Chettri he rushed to the place of occurrence and found the accused fleeing away and villagers apprehended him and tied his hands. She further says that the deceased was found lying in the room of the accused. She further says that the deceased was found lying in the room of the accused. It is for the first time in evidence of P. W. 11 that we get the mens rea behind the alleged incident and it is that the deceased had illicit connection with the wife of the accused and the accused stated it to him. ( 7 ) LET us now come to the evidence of P. W. 5 Rabin Chettri said to be a child witness. Occurrence took place on 2. 6. 1996, while evidence of P. W. 5 was recorded on 6. 5. 1997. On the date of his evidence his age was 12 years which means that on the date of incident which was just a year prior to his giving deposition he was 11 years old. He resides at Koklong basty where all the witnesses reside. According to him, it was a Sunday at 2. 30 p. m. on 2. 6. 1996 when he found the accused calling the deceased in his house and then found them altercating. He was at that time seated by the side of a well when the accused struck the deceased by an axe on his head and neck whereafter the deceased fell down on the ground. After the incident the accused tried to flee away towards the jungle and on seeing this he raised alarm in the village and narrated the incident to P. W. 2, P. W. 3 and Ram bahadur. The villagers chased the accused and caught hold of him and then he was tied by a rope with a tree. Police then came and arrested the accused. From cross-examination of this witness it further appears that his house is at a distance of 5/6 cubits away from the house of the accused. Sajan, Suresh and Dorjee were playing marbles with him at the time of the incident by the side of the well. No other persons were present except the accused and the deceased in the hut of the deceased. He further says that as he was observing game of marbles it was not possible for him to say which people were passing by the side of him. P. W. 16, the I. O. of the case says in his evidence that he reached the place of occurrence which is the house of the accused at 4. He further says that as he was observing game of marbles it was not possible for him to say which people were passing by the side of him. P. W. 16, the I. O. of the case says in his evidence that he reached the place of occurrence which is the house of the accused at 4. 05 p. m. , while he received the complaint at the Sukna Out Post at 3. 25 p. m. on 2. 6. 1996, that he found the deadbody of the deceased in the room of the accused, that he seized the axe which was lying near the deadbody of the deceased, that he found the accused being tied with a mango tree after he had reached the place of occurrence and some time after his arrival at the place of occurrence he sent the accused to the Medical College for admission as he found marks of injury in the feet of the accused since he made an attempt to escape after the incident. ( 8 ) HAVING recorded the sum total evidence of the witnesses let us proceed to have a critical appreciation thereof and while doing so we unchallengeably meet with the following facts: (a) The house of P. W. 2, P. W. 3, P. W. 5 and P. W. ll are absolutely near the hut of the accused. P. W. I, P. W. 2. P. W. 3, P. W. 4, P. W. 5, P. W. 6, P. W. 7 and P. W. ll as also the accused reside at Koklong basty. (b) P. W. 5 who is the lone eye-witness to the incident and whose house is only at a distance of 5/6 cubits away from the hut of the accused found the accused calling the deceased to his hut and hitting him by an axe on his head when he along with other boys of the locality was playing marbles. (c) It is the unchallenged version of all the material witnesses that the deadbody of Ganey Bahadur Tamnag was found in the hut of the accused. (d) P. W. 16, the I. O. of the case also found the deadbody of Ganey Bahadur in the hut of the accused. (e) On hearing alarm by P. W. 5 the villagers assembled and found the accused fleeing away. This is a circumstance strong enough against the accused. (d) P. W. 16, the I. O. of the case also found the deadbody of Ganey Bahadur in the hut of the accused. (e) On hearing alarm by P. W. 5 the villagers assembled and found the accused fleeing away. This is a circumstance strong enough against the accused. (f) Unchallengeably the villagers apprehended the accused who was on the way to the jungle and brought him back and tied him by a rope with a mango tree. (g) The accused sustained injury on his feet for which he was sent to medical College and Hospital. (h) The blood-stained axe was found near the deadbody in the hut of the accused. ( 9 ) NOW let us consider how far the prosecution case could have been assailed of by the defence. The first attack is that it was impossible on the part of P. W. 5 to witness the incident of assault since according to him he was playing marbles with other boys. P. W. 5 said in his cross-examination that he was watching the game of marbles while he was seated by the side of well and his house is only at a distance of 5/6 cubits from the hut of the accused. He was with the other boys by the side of the well which 'again is close to the hut of the accused. We find no improbability in P. W. 5 witnessing the incident. P. W. 5 does not have any enmity with the accused nor does he have any occasion to be more friendly for worldly matters with P. W. 2. He is a village boy remaining present at the place of occurrence and is a normal witness. Mr. Partha Sarathi Bhattacharya, learned Advocate appearing for the appellant submits that as the witness is witness 12 years of age he was not tested by the learned Judge as to his competency to depose. ( 10 ) SECTION 118 of the Evidence Act runs as follows: "all persons shall be competent to testify unless t'. ie Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. ie Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. " ( 11 ) THE learned Trial Court did not record that he was satisfied that p. W. 5 was not prevented from understanding the questions put to him or from giving rational answers to the questions of the prosecution or of the defence. Though the learned Trial Court did not specifically record about his satisfaction as to the competency of P. W. 5 to testify to the incident the examination-in-chief and cross-examination followed thereby of the witness clearly reveals that the witness was quite rational and competent enough to understand the question and the answer to each question was fully a rational answer. It is a manner of cross-examination of the witness that has made it amply clear that the witness understood each and every question to which he answered in cross-examination and at the trial the defence had no ground to say that the witness was totally incompetent to give evidence. In santosh Mondal vs. State, as reported in 1983 Cr. LJ 773, a Division Bench of this Court held that keeping a record of preliminary examination is not a condition precedent to taking of evidence and it may be desirable but not an invariable requirement of law. Their Lordships held that whether the witness has stood the test would be apparent from the evidence given by him in the case. Therefore, we are satisfied that P. W. 5 was competent and a natural witness to the incident and his veracity cannot be clouded only on the ground of his being 11 years old at the time of the incident. Moreover, it shall be remembered here that P. W. I whose house is also close to the house of the accused says that on hearing the news from P. W. 5 he rushed to the place of occurrence. There has been no challenge to this piece of evidence in cross-examination of the witness. It is argued by Mr. Bhattacharya that in the fir it has not been stated that P. W. 2 was reported of th^ incident by P. W. 5. There has been no challenge to this piece of evidence in cross-examination of the witness. It is argued by Mr. Bhattacharya that in the fir it has not been stated that P. W. 2 was reported of th^ incident by P. W. 5. True, in the FIR it was not the claim of P. W. 2 that she had seen the incident. She has stated in the FTR that she had come to know of assault on her husband but the name of the P. W. 5 has not been mentioned. Absence of the name of the P. W. 5 in the FIR does not vitiate or upset the prosecution case on the ground that soon after the incident was over P. W. 16 examined the witnesses and it could not be established that P. W. 2, P. W. 3 and P. W. ll. did not tell him (P. W. 16) that they heard of the incident from P. W. 5. The FIR is not supposed to be exhaustive and replica of the oral testimonies of all the witnesses. The matter of the fact is that the place of occurrence is at a distance of 3 kilometer from the police station. Occurrence took place at 2. 30 p. m. on 2. 6. 1996. P. W. 2 lodged the complaint at Sukna Outpost at 3. 25 p. m. and the case was registered at Majigara P. S. at 4. 30 p. m. It is to be mentioned that P. W. 2 herself has not written the FIR, she being an illiterate person. She approached P. W. I, a school teacher by profession who says in his evidence that he was narrated of the incident by P. W. 2 and P. W. 5. Significantly, it could not be established through evidence of I. O. that P. W. I did not tell him ( I. O.) that he was instructed to write the FIR by P. W. 2 and narration of the incident was given by P. W. 2 and P. W. 5. There is no earthly reason to argue that all the persons of the area to which both the witnesses and the accused belong have planted P. W. 5 all on a sudden to develop the prosecution case by erecting him to be eye-witness to the incident. There is no earthly reason to argue that all the persons of the area to which both the witnesses and the accused belong have planted P. W. 5 all on a sudden to develop the prosecution case by erecting him to be eye-witness to the incident. Evidence of P. W. 5 is found to be corroborated by P. W. 2 and P. W. 3 as also P. W. ll. That P. W. 5 has witnessed the incident is amply clarified and attested to by p. W. 11 whose statement on this point was not put to challenge by way of cross-examination. There was hardly any scope or room on the part of the inviestigation to plant P. W. 5 to buttress the case of the prosecution. There was no other person present in the hut of the accused when incident took place. All post-occurrence witnesses found the deadbody of the deceased in the hut of the accused. Though P. W. 11 is a lone witness to the point that the accused told him that he had killed the deceased on the alleged ground that the deceased had illicit connection with his wife of whom we have no reason to discard this evidence firstly because there was no cross- examination on the point and secondly because it is important that both p. W. 1 and the accused live side by side it was not unnatural for him. (accused)to make any such statement to bis fellow-being and this statement remaining unchallenged in cross-examination clearly depicts the mens rea behind the incident. Yet, the question whether the deceased had really any illicit connection with the wife of the accused is a different one. It is argued that p. W. 5 says that he narrated the incident to one Ram Bahadur but Ram bahadur has not been examined. Two out of three persons who was reported of the incident by P. W. 5 are P. W. 2 and P. W. 3 and in the circumstance non-examination of Ram Bahadur or of the boys who played marbles amongst themselves is of no significance since the most natural eye-witness to the incident has successfully stood the test of cross-examination and his evidence has got corroboration by P. W. ll apart from evidence of P. W. 2 and P. W. 3. It is argued that the story of extra-judicial confession has not been told by all the witnesses and it is not clear as to whom such alleged extra-judicial confession was so made. Now, we find that it is P. W. 3, P. W. 6, P. W. 7 and p. W. 11 who have spoken of extra-judicial confession said to have been made by the accused to them. The witnesses who did not speak of extra-judicial confession said to have been made by the accused are P. W. 1, P. W. 2 and p. W. 4. The question, therefore, is whether simply because P. W. 1, P. W. 2 and P. W. 4 did not give chorus with P. W. 3, P. W. 6, P. W. 7 and P. W. 11 who testified to about extra-judicial confession the evidence of the witnesses who spoke of extra-judicial confession is false or true. Consistent chorus is not the stamp of truth. P. W. 3 clearly said that the accused confessed in his presence that he killed Ganey Bahadur If P. W. 5 had spoken of extra-judicial confession then he could have been attributed with a tutored and a partition witness. His non-mentioning about extra-judicial confession makes him a credible witness. P. W. 6 says that the accused confessed his guilt before the villagers. Here the particular person or persons before whom confession was made is not material. A good number of local people had assembled. Accused was apprehended and tied by a rope with a tree and he made an extra-judicial confession in such a situation and it is impossible for any of the witnesses to say as to which particular member of the public the confession was addressed to. Even the evidence of P. W. 3, P. W. 7 and P. W. ll is very specific since they say that in their presence confession was made. When such confession was made police did not arrive thereat as yet and in the circumstance such extra-judicial confession corroborates the evidence of p. W. 5. Even the evidence of P. W. 3, P. W. 7 and P. W. ll is very specific since they say that in their presence confession was made. When such confession was made police did not arrive thereat as yet and in the circumstance such extra-judicial confession corroborates the evidence of p. W. 5. Evidence in cross-examination of P. W. 5 to the effect that since he was observing game he could not say which passers-by was passing by him cannot demolish the truthfulness of his evidence on the fact-in-issue because his seeing the accused calling the victim to his house and killing him assumed greater momentum which could not go unnoticed, and compared with this event the passing of passers-by could be of no significance to him at all in that circumstance. Now, P. W. 6 has said in his cross-examination that he does not know what was the version of the police with the accused as well as the villagers. This cannot be interpreted to mean that the accused did not make any extra-judicial confession. He may not be knowing the conversation between the police and the accused or the conversation between the police and the villagers but that does not negate his evidence that the accused made extra-judicial confession at the place of occurrence. What is more important is that like P. W. 11 who came to the place of occurrence on hearing the incident from P. W. 5, P. W. 7 also says that she found P. W. 5 disclosing her when she came out on hearing hue and cry that the accused had called the deceased in his house and killed him. Therefore, it cannot be said that by mentioning the name of P. W. 5 as eye-witness P. W. 2 has tried to improve the case. It was argued that no independent witness was examined. The argument is not at all sustainable because the only eye-witness is P. W. 5 who is an independent witness and other witnesses like p. W. I, P. W. 3, P. W. 4, P. W. 6, P. W. 7 and P. W. ll are all post-occurrence witnesses and each of them is an independent witness with no evidence against them to be inimical to the accused or friendly with P. W. 2. It was argued that in the FIR it has not been stated that it was read out and explained to P. W. 2. Now, P. W. 1 has said that he scribed the FIR on being narrated and instructed by P. W. 2. P. W. 2 has said in her evidence that she narrated the incident to P. W. 1 who wrote out the complaint. P. W. 2 has given evidence in complete corroboration of the FIR. In the circumstance absence of endorsement in the margin of the complaint that it was read and explained to P. W. 2 by P. W. 1 does not enure to the benefit of the defence. It was argued that since the FIR was scribed after apprehension of the accused it was expected that in the FIR the story of extra-judicial confession made by the accused would have found berth therein and non-mentioning of extra-judicial confession in the FIR suggests that the story of extra-judicial confession is a developed one. We are unable to agree to the point. Even if the extra-judicial confession is ruled out the case comes to be proved with no amount of doubt. The witnesses who spoke of extra-judicial confession cannot be at all disbelieved and non-mentioning of extra-judicial confession in the FIR does not discard the veracity of the statements of P. W. 3, P. W. 6, p. W. 7 and P. W. ll. Moreover, none of the persons who spoke not about extra-judicial confession is the FIR maker. It was argued by Mr. Bhattacharya that P. W. 14 Dr. Saibal Gupta said in his cross-examination that wound found in the deadbody could not be made by an axe and this piece of evidence of p. W. 14 is a total set back to the prosecution case. We are unable to agree to the submission for the reasons, firstly that P. W. 14 was not the doctor who held post-mortem examination and the doctor who held post-mortem examination namely P. W. 15 did not say that the injuries which were ante mortem and homicidal in nature could not be caused by a sharp-cutting instrument. We are unable to agree to the submission for the reasons, firstly that P. W. 14 was not the doctor who held post-mortem examination and the doctor who held post-mortem examination namely P. W. 15 did not say that the injuries which were ante mortem and homicidal in nature could not be caused by a sharp-cutting instrument. Secondly, the axe which was blood-stained was found near the deadbody of the deceased in the hut of the accused and all the witnesses including the I. O. who came to the place of occurrence within an hour had found the offending weapon by the side of the deceased in the hut of the accused. Thirdly, P. W. 5 the lone eye-witness to the incident has said in clear terms that he had found the accused striking blow on the head of the deceased by an axe. Fourthly, the FSL report (Ext. 6) clearly revealed that the axe was stained with blood. Fifthly, when the doctor who held postmortem examination did not say that the injuries could not be caused by an axe a stray sentence of P. W. 14 who had no business to say like that cannot outweigh all the overwhelming evidence both ocular and circumstantial. Sixthly, the nature of injury evidenced by P. W. 15 is indicative of the fact that they were caused by a sharp-cutting instrument, and it cannot be said that an axe is not a sharp-cutting weapon. The argument is thus ruled out. ( 12 ) IT was argued by the learned Advocate for the appellant with reference to the evidence of P. W. 5 that there was altercation between the deceased and the accused which implies that if the offence has allegedly been committed by the accused at all it was so committed out of provocation which in the circumstance would cease to be an offence under section 302 IPC but would come under section 304 Part-II of the IPC. In evidence we find only single sentence from P. W. 5 about altercation which is not at all sufficient to hold that there was provocation given by the deceased to the accused. In fact, there is no evidence of provocation meted out to the accused at the instance of the deceased and when there is no such evidence we will not be entitled to presume that provocation was offered by the deceased. In fact, there is no evidence of provocation meted out to the accused at the instance of the deceased and when there is no such evidence we will not be entitled to presume that provocation was offered by the deceased. Altercation which in dictionary meaning is noisy argument is completely different from provocation. Provocation worth the word would always indicate prompting a person to retaliate physically. We have no evidence that the deceased had attacked the accused, or attempted to assault him or did certain act which was sufficient to incite the accused to do away the life of the deceased. What is not there cannot be permitted to be presumed. Moreover, the nature of injury inflicted on the deceased does not give rise to the reasoning that while causing assault the accused had no intention to cause death or to cause such bodily injury as was likely to cause death. Soon after the accused started fleeing away after hitting the deceased on his head by an axe the deceased had meanwhile succumbed to the injuries. No sooner had all the witnesses come to the hut of the accused than they found. Ganey Bahadur lying dead. Dr. Biswanath Kahali who held post-mortem examination found 4" x 0. 8" x bone deep sharp-cutting incised wound on the postero-lateral side of scalp in left side obliquely extending from left parietal eminence to mastoid process over left temporal region. There was also evidence of clean cut over left parietal and temporal bone measuring 2. 8" x 0. 3" x 0. 2". Having considered the gravity of the injuries, the seat of injury, and the offending weapon used for causing the injury it clearly makes out a case that by calling the deceased to his hut the accused had intended to cause his death. On the part of the deceased, evidence and the circumstances do not suggest, there was anything to provoke the accused. It is not a case that the deceased was caused hurt by the accused while the deceased was found in actual intercourse with the wife of the accused and it is only in such circumstances that lighter punishment might be invoked. Such is not the case here. It is only P. W. 11 who told in her evidence that the accused had told her that the deceased had illicit connection with his wife. Such is not the case here. It is only P. W. 11 who told in her evidence that the accused had told her that the deceased had illicit connection with his wife. The accused allegedly saying so to P. W. 11 cannot by any amount of reasoning justify us to hold that the act of the accused was caused by provocation. Strictly speaking, there is no evidence of legal character to hold that the deceased had illicit connection with the wife of the accused. Lighter punishment would necessitate existence of some amount of positive evidence to that effect and there being no such evidence charge under section 302 IPC cannot be levelled down to one under section 304 IPC. It was argued that medical evidence of P. W. 15, does not tally with the evidence of P. W. 5 on the ground that P. W. 5 has said that the deceased was hit on the neck and head while P. W. 15 did not find any injury on neck. This marginal difference cannot be suggestive of P. W. 5 having not seen the incident. ( 13 ) THUS, regard being had to the facts and circumstances of this case as well as evidence on record we are clearly of the judgment that there is no merit in the appeal. The learned Trial Judge has upon appropriate analysis of evidence of the witnesses has correctly found the appellant to be guilty of the offence punishable under section 302 of the IPC. We accordingly dismiss the appeal, confirm the judgment and order of the learned Trial Court. Appeal dismissed.