JUDGMENT AND ORDER : AJIT SINGH, J. 1. The sole appellant Rameswar Lohar has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5,000/- with default stipulation. 2. The victim of incident was Nipu Dey @ Nripendra Dey. 3. According to the prosecution case, Nripendra was well known to the appellant. On 26.6.2008, around 6.30 p.m., the appellant met Nripendra on way, while the latter was returning home after closing his shop. Because of their close acquaintance, they entered into conversation on personal affairs. During conversation, Nripendra disclosed to appellant that his newly born son was actually from him because of his illicit relation with the appellant’s wife. This infuriated the appellant and he hacked Nripendra to death with a dao. The appellant then went to Daso Majhi (PW-5) with a dao in his hand and confessed his guilt. Thereafter, the appellant returned home and washed his blood stained shirt and dao. Ejahar exhibit 1 of the incident was made by Widow Anjali Dey (PW-1) of Nripendra at Police Station Borhat. Since she was not an eye witness, she did not name any person as the assailant of Nripendra. The police during investigation arrested the appellant on the night of incident itself. The police also seized one dao from his possession vide seizure list exhibit 4. While in custody, the appellant expressed his desire to make confession. The police, therefore, requested the Judicial Magistrate, First Class, Charaideo, Sonari to record his statement of confession. On 14.9.2012, Smti. Rashmita Das (PW-10), Judicial Magistrate, recorded appellant’s statement of confession exhibit 8 under Section 164 of the Code of Criminal Procedure. 4. Dr. Pranab Kumar Dutta (PW-8) conducted the post mortem examination on the body of Nripendra. He found following injuries on the dead body:- “No. 1 :- Over left cheek obliquely placed cutting left ear in upper 1/3rd 3” x 1” x1” with clotted blood. No. 2 :- Cut injury on scalp behind the left ear from hair line directed upward 3” x ½” x ½.” No. 3 :- Cut injury front of face cutting the lower part of nose from the cheek to left side of neck 8”x 2” x 1” with cutting of bone. No. 2 :- Cut injury on scalp behind the left ear from hair line directed upward 3” x ½” x ½.” No. 3 :- Cut injury front of face cutting the lower part of nose from the cheek to left side of neck 8”x 2” x 1” with cutting of bone. No. 4 :- Cut injury over left side of the face from the angle of the mouth to the left of the neck, two in numbers – one 5” x 1½” x 1” other 4” x 1½” x 1” with blood around the wounds.” 5. The post mortem examination report of Dr. Pranab Kumar Dutta is exhibit 7 and according to his opinion, injuries were ante mortem in nature and the cause of death of Nripendra was due to shock and haemorrhage because of injuries sustained. 6. At the stage of framing of charge, the appellant denied his guilt. But, while being examined as an accused, he admitted his guilt as well as making statement of confession exhibit 8 before the Judicial Magistrate. 7. There is no eye witness to the incident. The trial court mainly relying upon the statement of confession of appellant and his admission of guilt at the stage of examination as an accused convicted and sentenced him as aforesaid. 8. The learned counsel for the appellant has not challenged the finding of the trial court that appellant caused the death of Nripendra by causing multiple injuries on his head and neck with a dao. His only contention is that even accepting the prosecution version in totality, offence under Section 302 of the Indian Penal Code is not made out and the appellant at the best can be punished only for an offence under Part I or Part II of Section 304 of the Indian Penal Code. According to the learned counsel, the case at hand is not of pre-meditated murder as the incident took place on the spur of moment and there was sudden and grave provocation by Nripendra which resulted in infliction of injuries on his body. The learned counsel has submitted that the case would be covered under Exception 1 to Section 300 of the Indian Penal Code. The learned Additional Public Prosecutor, on the other hand, defended the conviction and sentence of the appellant as passed by the trial court. 9. The learned counsel has submitted that the case would be covered under Exception 1 to Section 300 of the Indian Penal Code. The learned Additional Public Prosecutor, on the other hand, defended the conviction and sentence of the appellant as passed by the trial court. 9. To determine whether the conviction of the appellant under Section 302 of the Indian Penal Code is legal and proper, we deem it appropriate to examine his statement of confession exhibit 8 which reads as under:- “I knew Nipu Dey from before. At 6.30 p.m. on the day of occurrence I went with Nipu. I went to pucca line. Closing his shop Nipu was returning home. We were talking while going together. Nipu told me that my little son (10 months) was born not from my side but from his side and that he had relationship (illicit) with my wife. It angered me. Then Nipu took out a dao from his cycle bag and attempted to hit me when I held it and pushing him to the fence I hacked him with the dao. He died instantly. I ran-away taking the dao along. I went to Daso Majhi’s house and told him about the occurrence. On seeing my shirt stained with blood I asked him for a shirt but he refused. Then I went home, washed my blood stained shirt, washed the dao and kept it in my house. Thereafter I went to Sabua to show my ailing daughter to doctor. I returned home. Police apprehended me at night. I stayed at home for a few days. Thereafter police apprehended me. This is what I have to say. P.O. & A.C. Sd/- illegible J.M. 1st Class Charaideo, Sonari.” 10. A bare reading of the above quoted statement of confession reveals that appellant had gone to meet Nripendra. He did not carry any arm with him. He met Nripendra on way while the latter was returning home after closing his shop. They then entered into conversation on personal affairs. During conversation, Nripendra told the appellant that his newly born son was actually from his side because of his illicit relation with the appellant’s wife. This disclosure by Nripendra naturally infuriated the appellant. Nripendra had kept a dao in bag fastened to his bicycle. Seeing the anger of appellant, Nripendra took out the dao and attempted to hit him. During conversation, Nripendra told the appellant that his newly born son was actually from his side because of his illicit relation with the appellant’s wife. This disclosure by Nripendra naturally infuriated the appellant. Nripendra had kept a dao in bag fastened to his bicycle. Seeing the anger of appellant, Nripendra took out the dao and attempted to hit him. But the appellant held the dao and pushed Nripendra to the fence. The appellant then in the heat of passion caused injuries with that dao to Nripendra who died on the spot. Thereafter, the appellant went to the house of Daso Majhi and told him about the incident. The appellant then went home and washed his blood stained shirt as well as the dao and kept the same in his house. Dao was seized from the possession of appellant. Daso Majhi has testified that soon after the incident the appellant came to his house and confessed about killing Nripendra. These facts fully corroborate the confession of appellant. Therefore, in the fact situation of the case, provocation caused to the appellant must be held to be both grave and sudden and the present case is apparently covered by Exception 1 to Section 300 of the Indian Penal Code. 11. In the result, the appeal is partly allowed. The conviction of the appellant under Section 302 of the Indian Penal Code and sentence of life imprisonment are set aside. Instead, he is convicted under Section 304 Part I of the Indian Penal Code and sentenced to rigorous imprisonment for ten years. The sentence of fine is however affirmed.