JUDGMENT 1. This appeal is directed against the judgment of conviction and sentence dated 21-6-1999 passed by the Additional Sessions Judge, Kanker, in ST No. 199/1998, whereby the learned Additional Sessions Judge has convicted the appellant under Section 302 of the Indian Penal Code (for short 'the IPC') for committing murder of his brother Masiya (since deceased) at 20.00 hours on 14-12-1997 and sentenced him to undergo imprisonment for life. First Information Report (F.I.R.) (Ex. P/1) was lodged by Basuram Madiya (P.W.-1) at 11.15 hours on 16-12-1997 stating that he does cultivation at village Becha. Appellant and the deceased are his brothers. At 9.00 a.m. on 15-12-1997 Somaru Madiya of village Kohkameta came to his village and informed that his middle brother Masiya has been murdered by his elder brother Modi by means of burnt wooden log. Informant immediately went to village Kohkameta, Sargipara and found the dead body of the deceased lying on the road having sustained injuries on his head and mandible region. On enquiry, the appellant informed him that the deceased had illicit relation with his wife Mangati, therefore, out of anger, he has assaulted the deceased by burnt wooden log. Villager Manglu informed the informant that the appellant brought the deceased near his house and assaulted over his head. 2. Merg intimation (Ex. P/2) was lodged at 11.20 hours on 16-12-1997 at the instance of informant Basuram Madiya (P.W.-1). Dead body inquest was prepared vide Ex. P/4. Crime detail form along with spot map was prepared vide Ex. P/7. Bloodstained soil & plain soil was recovered from the place of occurrence vide Ex. P/8. Memorandum statement of the appellant was recorded on 16-12-1997 vide Ex. P/9, which led to recovery of one burnt wooden log vide Ex. P/10. The dead body was sent for post-mortem examination, which was conducted by Dr. M.K. Suryawanshi (P.W.-7), who submitted his report vide Ex. P/11-A opining that cause of death was syncope due to excessive external and internal bleeding through the injuries and homicidal in nature; duration of death is between 24-30 hours prior to autopsy. Baniyan of the deceased was recovered vide Ex. P/13. Burnt wooden log recovered from the appellant was sent for medical examination vide Ex. P/15 to Dr. M.K. Suryawanshi (P.W.-7) who submitted his report vide Ex. P/15-A to the effect that blood like stains are present over the wooden piece. Baniyan of the deceased was recovered vide Ex. P/13. Burnt wooden log recovered from the appellant was sent for medical examination vide Ex. P/15 to Dr. M.K. Suryawanshi (P.W.-7) who submitted his report vide Ex. P/15-A to the effect that blood like stains are present over the wooden piece. He recommended for forensic examination of the wood by the FSL, Raipur, however, FSL report is not available. 3. On completion of investigation, charge sheet was filed against the appellant for committing offence under Section 302 of the IPC. The trial Court framed charge against the appellant for the said offence. In course of trial, the prosecution examined 7 witnesses to bring home the charge levelled against him. The appellant abjured the guilt, but did not examine any defence witness. He did not raise any specific defence in his examination under Section 313 of the Cr.P.C. At the end of trial, the trial Judge convicted & sentenced the appellant, as aforementioned. 4. We have heard learned counsel appearing for the parties and perused the record. 5. The question to be determined is-whether the appellant is guilty of the crime? If the answer to the above question is in the affirmative, we are required to consider as to whether the act committed by him would amount to commit murder or it would amount to culpable homicide, not amounting to murder? 6. Basuram (P.W.-1) is the brother of the appellant and the deceased. He has proved F.I.R. (Ex. P/1). He is not an eye-witness. He was declared hostile. However, in his cross-examination, he admitted that the appellant had made extra judicial confession to him by saying that the deceased had illicit relationship with his wife, therefore, he committed the murder by assaulting him by means of burnt wooden log. This witness has also proved the documents (Ex. P/2 to Ex. P/5). When cross-examined by the defence he again supported the appellant by saying that he did not make any extra judicial confession to him. 7. Meharsingh (P.W.-2) is a witness of extra judicial confession. He has proved the dead body inquest (Ex. P/4), spot map (Ex. P/7), memorandum statement of the appellant (Ex. P/9) and the recovery of burnt wooden log from the appellant (Ex. P/10). He has also proved seizure of soil from the place of occurrence vide Ex. P/8. 7. Meharsingh (P.W.-2) is a witness of extra judicial confession. He has proved the dead body inquest (Ex. P/4), spot map (Ex. P/7), memorandum statement of the appellant (Ex. P/9) and the recovery of burnt wooden log from the appellant (Ex. P/10). He has also proved seizure of soil from the place of occurrence vide Ex. P/8. In cross-examination, he admits that the appellant was questioned when the villagers assembled near the dead body. 8. Nirgu Ram (P.W.-3) is also a witness to the extra judicial confession. In cross-examination he admits that the appellant made confession out of fear and that the appellant himself came to the village informing that the dead body is lying on the road, however, in para 8 of the cross-examination he denies that the appellant made any extra judicial confession. 9. Manglu (P.W.-4) is a witness to the extra judicial confession. He stated that when the appellant was enquired as to why he committed the murder, he stated that the deceased was seen in compromising position with his wife, therefore, he assaulted the deceased. It has not been suggested to this witness that the appellant did not make any extra judicial confession. - Sakatram (P.W.-5) is also a witness to the extra judicial confession, but he stated that the appellant did not inform as to why he committed the murder of the deceased. - B.S. Netam (P.W.-6) is the Assistant Sub-Inspector. He has conducted investigation. 10. Dr. M.K. Suryawanshi (P.W.-7) had conducted post-mortem over the body of the deceased. He has proved the post-mortem report (Ex. P/11A). He found following injuries over the body of the deceased: - Lacerated wound over right temporal region in the size of 2" x 2" x ½." - Lacerated wound over the mid parietal region in the size of 2½" x ½" x ½". - Blunt injury over neck in the size of 2" x 2". According to this witness, cause of death was syncope due to excessive external and internal bleeding through that injuries and homicidal in nature; duration of death is between 24-30 hours prior to autopsy. 11. The evidence adduced by the prosecution, as discussed above, would prove that the appellant, deceased and the informant are the real brothers. While the informant was residing at a different village i.e. Becha, appellant and the deceased were residing together in village Sargipara. 11. The evidence adduced by the prosecution, as discussed above, would prove that the appellant, deceased and the informant are the real brothers. While the informant was residing at a different village i.e. Becha, appellant and the deceased were residing together in village Sargipara. The incident happened at 8.00 p.m. on 14-12-1997. From the evidence of extra judicial confession and the contents of the case diary statements of some of the witnesses to the extra judicial confession, which has been exhibited while confronting the witnesses namely; Mehar Singh (P.W.-2), Nirgu (P.W.-3), Manglu (P.W.-4), it would appear that at the time of incident the appellant found the deceased in a compromising position with his wife and thereafter, he picked up the burnt wooden log from his house and assaulted the deceased. There is nothing in the cross-examination of the witnesses to the extra judicial confession, which would discredit their statement. 12. When the evidence of extra judicial confession is considered on the touchstone of the principles laid down by the Supreme Court in Sansar Chand v. State of Rajasthan (2010) 10 SCC 604 : (2011 Cri LJ (supp) 433) and S.K. Yusuf v. State of West Bengal (2011) 11 SCC 754 : (2011 Cri LJ (supp) 583), it would appear that the witnesses who are innocent tribal living in a remote village of Narayanpur in Bastar District have made statement that the appellant made extra judicial confession before them. 13. Although there is some contradiction in the statement of witnesses about the manner and the words which were exactly uttered by the appellant while making the extra judicial confession, but the same does not discredit their evidence. 14. In Thoti Manohar v. State of Andhra Pradesh (2012) 7 SCC 723 : (2012 Cri LJ 3492), the Supreme Court has held that minor discrepancies on trivial matters not touching the core of the matter cannot bring discredit to the story of the prosecution. Giving undue importance to them would amount to adopting a hyper-technical approach. The Court, while appreciating the evidence, should not attach much significance to minor discrepancies, for the discrepancies which do not shake the basic version of the prosecution case are to be ignored. Giving undue importance to them would amount to adopting a hyper-technical approach. The Court, while appreciating the evidence, should not attach much significance to minor discrepancies, for the discrepancies which do not shake the basic version of the prosecution case are to be ignored. (See : State of U.P. v. M.K. Anthony (1985) 1 SCC 505 : (1985 Cri LJ 493), Appabhai v. State of Gujarat, 1988 (Supp) SCC 241 : (1988 Cri LJ 848), Rammi v. State of M.P. (1999) 8 SCC 649 : (1999 Cri LJ 4561), State of H.P. v. Lekh Raj (2000) 1 SCC 247 : (2000 Cri LJ 44), Laxman Singh v. Poonam Singh (2004) 10 SCC 94 : (2003 Cri LJ 4478), Dashrath Singh v. State of U.P. (2004) 7 SCC 408 : ( AIR 2004 SC 4488 ) 15. In the Statement of Manglu (P.W.-4) there is no contradiction nor he has been suggested that the appellant did not make any extra judicial confession to him. 16. On the basis of the above evidence, we have found that the evidence of extra judicial confession is fully reliable and the appellant is guilty of committing murder of the deceased. Thus, the trial Court has not committed any illegality in convicting the appellant. 17. Although the appellant has been found guilty of committing the crime, but it is also required to be seen as to whether the appellant has commission of culpable homicide, not amounting to murder. 18. The question as to when conviction under Section 302 of the IPC can be converted into culpable homicide, not amounting to murder under Section 304 Part - I & Part - II of the IPC with the aid of first exception to Section 300 of the IPC has been considered by the Supreme Court in Aran Raj v. Union of India and Others (2010) 6 SCC 457 : (2011 Cri LJ (Supp) 918), and it has been held thus in paras 16 & 17: "16. The aforesaid section provides five exceptions wherein the culpable homicide would not amount to murder. Under Exception 1 an injury resulting into death of the person would not be considered as murder when the offender has lost his self-control due to the grave and sudden provocation. The aforesaid section provides five exceptions wherein the culpable homicide would not amount to murder. Under Exception 1 an injury resulting into death of the person would not be considered as murder when the offender has lost his self-control due to the grave and sudden provocation. It is also important to mention at this stage that the provision itself makes it clear by the Explanation provided that what would constitute grave and sudden provocation, which would be enough to prevent the offence from amounting to murder, is a question of fact. Provocation is an external stimulus which can result into loss of self-control. Such provocation and the resulting reaction need to be measured from the surrounding circumstances. Here the provocation must be such as will upset not merely a hasty, hot-tempered and hypersensitive person but also a person with calm nature and ordinary sense. What is sought by the law by creating the exception is that to take into consideration situations wherein a person with normal behavior reacting to the given incidence of provocation. Thus, the protection extended by the exception is to the normal person acting normally in the given situation. 17. The scope of the "doctrine of provocation" was stated by Viscount Simon in Mancini v. Director of Public Prosecutions: (AC p. 9) 'It is not all provocation that will reduce the crime of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self-control, as the result of which he commits the unlawful act which causes death.... The test to be applied is that of the effect of the provocation on a reasonable man, as was laid down by the Court of Criminal Appeal in R. v. Lesbini, so (sic) that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the test, it is of particular importance (a) to consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter". 19. The Supreme Court in Sukhlal Sarkar v. Union of India and others (2012) 5 SCC 703 : (2012 Cri LJ 3032) held thus in paras 9 & 10: "9. The meaning of the expressions "grave" and "sudden" provocation has come up for consideration before this Court in several cases and it is unnecessary to refer to the judgments in those cases. The expression "grave" indicate that provocation be of such a nature so as to give cause for alarm to the appellant. "Sudden" means an action which must be quick and unexpected so far as to provoke the appellant. The question whether provocation was grave and sudden is a question of fact and not one of law. Each case is to be considered according to its own facts. 10. Under Exception 1 of Section 300, provocation must be grave and sudden and must have by gravity and suddenness deprived the appellant of the power of self-control, and not merely to set up provocation as a defence. It is not enough to show that the appellant was provoked into losing his control, it must be shown that the provocation was such as would in the circumstances have caused the reasonable man to lose his self-control. A person who claims the benefit of provocation has to show that the provocation was grave and sudden that he was deprived of power of self-control and that he caused the death of a person while he was still in that state of mind". 20. Appellant and the deceased are the real brothers. Deceased was residing with the appellant. It has come in the evidence that on the date of incident, the appellant witnessed the deceased in compromising position with his wife. The best evidence to disprove this proposition would have been the evidence of the wife of the appellant. However, despite citing her as a witness in the charge sheet filed against the appellant, she was not examined by the prosecution, therefore, adverse inference is drawn against the prosecution under the illustration (g) of Section 114 of the Indian Evidence Act, 1872. 21. However, despite citing her as a witness in the charge sheet filed against the appellant, she was not examined by the prosecution, therefore, adverse inference is drawn against the prosecution under the illustration (g) of Section 114 of the Indian Evidence Act, 1872. 21. It is natural and spontaneous behavior of an individual to became angry and enraged when he sees his wife in a compromising position with any third person, be that person is his brother. Therefore, if the evidence by saying that he murdered his brother because he had seen him in a compromising position with his wife, it appears the matter is of grave and sudden provocation and, as such, offence has been committed in a heat of passion out of an impulse in view of the behavior of the brother of the appellant i.e. deceased and his wife because of which he lost self-control. Therefore, the act of the appellant squarely falls within first exception to Section 300 of the IPC and the appellant would be guilty of culpable homicide, not amounting to murder punishable under Section 304 part II of the IPC. We accordingly hold the appellant guilty of committing culpable homicide, not amounting to murder. In the result, the appeal is partly allowed. The conviction and sentence imposed upon the appellant under Section 302 of the IPC are hereby set aside and instead he is convicted under Section 304 Part II of the IPC. It has been informed to us that the appellant has already been released from jail after getting special remission on the eve of Independence Day i.e. on 15-8-2013 on completing 14 years of jail sentence. Thus, he has already undergone the maximum jail sentence provided under Section 304 Part II of the IPC. Appeal Partly Allowed.