JUDGMENT : SANJAY K. AGRAWAL, J. 1. Since common question of fact and law is involved in both of these appeals, therefore, they have been clubbed together, heard together and are being decided by this common judgment. 2. Criminal Appeal No. 1183/2014 has been preferred by appellant Khirod Seth (A-1) and Criminal Appeal No. 937/2021 has been preferred by appellant Bhagirathi Seth (A-2) against the impugned judgment dated 25/09/2014 passed by learned Sessions Judge, Mahasamund in Sessions Trial No. 57/2013 whereby they have been convicted for offence punishable under Section 302/34 of IPC and have been sentenced to undergo life imprisonment with fine of Rs. 1000/- each and in default of payment of fine, additional R.I. for 1 month. 3. Case of the prosecution, in brief, is that on 04/03/2013 at about 8 PM, the appellants herein, in furtherance of their common intention assaulted Dinesh with stone and hands and fists due to which he suffered grievous injuries and died and they, thereby, committed the aforesaid offence. 4. Further case of the prosecution is that on 04/03/2013 at about 09:50 PM, Dasrathi Seth (PW-1) lodged a report at the Police Station that appellant Khirod Seth (A-1) had seen his wife Basanti in a compromising and objectionable condition with Dinesh and therefore, in furtherance of their common intention, both the appellants caused the death of Dinesh by assaulting him with stone and hands and fists. On the said report, merg intimation was registered vide Ex.P/2 and first information report was registered against the appellants vide Ex.P/3. Thereafter, inquest was conducted vide Ex.P/7 and dead body of Dinesh was subjected to postmortem which was conducted by Dr. Mahavir Prasad Agrawal (PW-13) and as per the postmortem report (Ex.P/17), cause of death is said to be cardiorespiratory failure as a result of head injury and hemorrhage and its complications and nature of death is said to be homicidal. From the spot, plain soil, blood stained soil and one blood stained stone was seized vide Ex.P/8. After due investigation, the appellants were charge-sheeted for offence punishable under Section 302/34 of IPC which was committed to the Court of Sessions for trial in accordance with law. The appellants abjured their guilt and entered into defence. 5. In order to bring home the offence, prosecution examined as many as 13 witnesses and brought on record 17 documents. After due investigation, the appellants were charge-sheeted for offence punishable under Section 302/34 of IPC which was committed to the Court of Sessions for trial in accordance with law. The appellants abjured their guilt and entered into defence. 5. In order to bring home the offence, prosecution examined as many as 13 witnesses and brought on record 17 documents. The statements of the appellants was taken under Section 313 of Cr.P.C. wherein they denied guilt, however, they examined none in their defence and neither brought any document on record. 6. Learned trial Court, after appreciation of oral and documentary evidence on record, finding the death of deceased Dinesh to be homicidal in nature and further finding the appellants to be the authors of crime in question, proceeded to convict them for offence punishable under Section 302/34 of IPC and sentenced them as aforesaid. 7. Mr. A.K. Yadav and Mr. Vikas Pandey, learned counsel for the appellants, would submit that since appellant Khirod Seth had seen his wife Basanti in a compromising and objectionable condition with Dinesh, on that account, in sudden anger and in heat of passion, the appellants assaulted Dinesh and caused his death which would be covered with Exception 1 to Section 300 of IPC and at the most, they can be convicted for offence punishable under Section 304 Part II of IPC and moreover, since the appellants are in jail since 05/03/2013 i.e. for more than 10 years, they be sentenced to the period already undergone. 8. Per contra, Mr. Sudeep Verma, learned State counsel, would submit that prosecution has been able to bring home the offence beyond reasonable doubt and as such, the trial Court is absolutely justified in convicting the appellants for offence punishable under Section 302/34 of IPC, therefore, this criminal appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the record with utmost circumspection. 10. The first question for consideration would be whether the death of deceased Dinesh was homicidal in nature? 11. Learned trial Court has recorded an affirmative finding in this regard and held the death of deceased Dinesh to be homicidal in nature relying upon the expert medical opinion of Dr. 10. The first question for consideration would be whether the death of deceased Dinesh was homicidal in nature? 11. Learned trial Court has recorded an affirmative finding in this regard and held the death of deceased Dinesh to be homicidal in nature relying upon the expert medical opinion of Dr. Mahavir Prasad Agrawal (PW-13) who has proved the postmortem report (Ex.P/17) in which cause of death is said to be cardiorespiratory failure as a result of head injury and hemorrhage and its complications and nature of death is said to be homicidal. Considering the statement of Dr. Mahavir Prasad Agrawal (PW-13) as well as the postmortem report (Ex.P/17) and the injuries suffered by the deceased, we are of the considered opinion that the trial Court has rightly held the death of deceased Dinesh to be homicidal in nature. We hereby affirm the said finding recorded by the trial Court particularly when it has been not been seriously questioned by learned counsel for the appellants. 12. The next question for consideration would be, whether it is the appellants who assaulted Dinesh with stone and hands and fists on account of which he suffered grievous injuries and died? 13. Considering the statement of Yashoda (PW-8), mother of deceased Dinesh who has clearly stated that on the date of the incident, Dinesh was at his house when appellant Khirod Seth (A-1) came to their house and he took Dinesh with him and after some time when Yashoda (PW-8) heard the noise of quarreling and fighting, she went outside and saw both the appellants assaulting her son and further considering the statement of Dasrathi Seth (PW-1) pursuant to which merg intimation (Ex.P/1) and first information report (Ex.P/2) were registered, we are of the considered opinion that the trial Court has rightly held that it is the appellants who assaulted deceased Dinesh and caused his death. 14. Now, what requires consideration is, whether the case of the appellants would fall within Exception 1 to Section 300 of IPC, as contended by learned counsel for the appellants? 15. 14. Now, what requires consideration is, whether the case of the appellants would fall within Exception 1 to Section 300 of IPC, as contended by learned counsel for the appellants? 15. In order to consider the plea raised by learned counsel for the appellants, it would be appropriate to notice Exception 1 to Section 300 of IPC, which states as under: “Exception 1 - When culpable homicide is not murder - Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.” 16. Exception 1 to Section 300 of the IPC applies when due to grave and sudden provocation, the offender, deprived of the power of self-control, causes the death of the person who gave the provocation. Exception 1 also applies when the offender, on account of loss of self-control due to grave and sudden provocation, causes the death of any other person by mistake or accident. 17. Their Lordships of the Supreme Court in the matter of K.M. Nanavati vs. State of Maharashtra, AIR 1962 SC 605 laid down the conditions which have to be satisfied for the exception to be invoked which are as under: “(a) the deceased must have given provocation to the accused. (b) the provocation must be grave. (c) the provocation must be sudden. (d) the offender, by the reason of the said provocation, should have been deprived of his power of self-control. (e) the offender should have killed the deceased during the continuance of the deprivation of power of self-control. (f) the offender must have caused the death of the person who gave the provocation or the death of any other person by mistake or accident.” Their Lordships held that for determining whether or not the provocation had temporarily deprived the offender from the power of self-control, the test to be applied is that of a reasonable man and not that of an usually excitable and pugnacious individual. Further, it must be considered whether there was sufficient interval and time to allow the passion to cool. Their Lordships in paragraphs 84 and 85 of the report observed as under: “(84) Is there any standard of a reasonable man for the application of the doctrine of “grave and sudden” provocation? Further, it must be considered whether there was sufficient interval and time to allow the passion to cool. Their Lordships in paragraphs 84 and 85 of the report observed as under: “(84) Is there any standard of a reasonable man for the application of the doctrine of “grave and sudden” provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision: it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately. (85) The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of “grave and sudden” provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to S. 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.” 18. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.” 18. Very recently, the Supreme Court in the matter of Dauvaram Nirmalkar vs. State of Chhattisgarh, Criminal Appeal No. 1124 of 2022, decided on 2.8.2022 relying upon K.M. Nanavati (supra) held in paragraphs 12 and 13 as under: “12. The question of loss of self-control by grave and sudden provocation is a question of fact. Act of provocation and loss of self-control, must be actual and reasonable. The law attaches great importance to two things when defence of provocation is taken under Exception 1 to Section 300 of the IPC. First, whether there was an intervening period for the passion to cool and for the accused to regain dominance and control over his mind. Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provocation. [See the opinion expressed by Goddar, C.J. in R. vs. Duffy, (1949) 1 All. E.R. 932] The first part lays emphasis on whether the accused acting as a reasonable man had time to reflect and cool down. The offender is presumed to possess the general power of self-control of an ordinary or reasonable man, belonging to the same class of society as the accused, placed in the same situation in which the accused is placed, to temporarily lose the power of self-control. The second part emphasises that the offender’s reaction to the provocation is to be judged on the basis of whether the provocation was sufficient to bring about a loss of self-control in the fact situation. Here again, the court would have to apply the test of a reasonable person in the circumstances. While examining these questions, we should not be short-sighted, and must take into account the whole of the events, including the events on the day of the fatality, as these are relevant for deciding whether the accused was acting under the cumulative and continuing stress of provocation. Gravity of provocation turns upon the whole of the victim’s abusive behaviour towards the accused. Gravity does not hinge upon a single or last act of provocation deemed sufficient by itself to trigger the punitive action. Gravity of provocation turns upon the whole of the victim’s abusive behaviour towards the accused. Gravity does not hinge upon a single or last act of provocation deemed sufficient by itself to trigger the punitive action. Last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained provocation test would be satisfied when the accused retaliation was immediately preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation. 13. Thus, the gravity of the provocation can be assessed by taking into account the history of the abuse and need not be confined to the gravity of the final provocative act in the form of acts, words or gestures. The final wrongdoing, triggering off the accused reaction, should be identified to show that there was temporary loss of self-control and the accused had acted without planning and premeditation. This has been aptly summarised by Ashworth [1975 Criminal L.R. 558-559 and George Mousourakis’s elucidation in his paper ‘Cumulative Provocation and Partial Defences in English Criminal Law’] in the following words: “The significance of the deceased’s final act should be considered by reference to the previous relations between the parties, taking into account any previous incidents which add colour to the final act. This is not to argue that the basic distinction between sudden provoked killings and revenge killings should be blurred, for the lapse of time between the deceased’s final act and the accused retaliation should continue to tell against him. The point is that the significance of the deceased’s final act and its effect upon the accused – and indeed the relation of the retaliation to that act - can be neither understood nor evaluated without reference to previous dealings between the parties.” Exception 1 to Section 300 recognises that when a reasonable person is tormented continuously, he may, at one point of time, erupt and reach a break point whereby losing self-control, going astray and committing the offence. However, sustained provocation principle does not do away with the requirement of immediate or the final provocative act, words or gesture, which should be verifiable. Further, this defence would not be available if there is evidence of reflection or planning as they mirror exercise of calculation and premeditation.” 19. However, sustained provocation principle does not do away with the requirement of immediate or the final provocative act, words or gesture, which should be verifiable. Further, this defence would not be available if there is evidence of reflection or planning as they mirror exercise of calculation and premeditation.” 19. Furthermore, in the matter of Hansa Singh vs. State of Punjab, AIR 1977 SC 1801 where the accused appellant therein on seeing G committing the act of sodomy on his son, lost his power and self-control which led him to commit the murderous assault on G and where the accused was convicted under Section 302 of the IPC, their Lordships of the Supreme Court found the murder to be committed during grave provocation and altered the conviction to one under Section 304 Part-II of the IPC. Their Lordships observed as under: “We, however, feel that the occurrence took place while the deceased was committing sodomy on Haria and that gave such a sudden and grave provocation and annoyance to the appellant which impelled him to assault the deceased. For these reasons we are satisfied that the case of the appellant falls clearly within the purview of Section 304, Part II of the Indian Penal Code. The appellant on seeing the deceased committing the act of sodomy on his son, lost his power and self-control and it was undoubtedly a grave and sudden provocation for him which led him to commit the murderous assault on the deceased.” 20. Reverting to the facts of the present case in light of the parameters laid down by the Supreme Court in K.M. Nanavati (supra) and Hansa Singh (supra), it is abundantly clear that the appellants were forcefully driven to the crime which was not premeditated and the occasion had sprung up the moment, as the appellant Khirod Seth (A-1) had seen his wife Basanti with deceased Dinesh in objectionable position and had lost his self-control, and due to grave and sudden provocation, the appellants assaulted the deceased. In our considered opinion, it was undoubtedly a grave and sudden provocation for the appellants which led them to commit the murderous assault on Dinesh. Howover, the appellants must have had knowledge that the injuries caused by them are sufficient to cause death. In our considered opinion, it was undoubtedly a grave and sudden provocation for the appellants which led them to commit the murderous assault on Dinesh. Howover, the appellants must have had knowledge that the injuries caused by them are sufficient to cause death. As such, we are satisfied that the appellants' case would clearly fall within the purview of Exception 1 to Section 300 of the IPC and the offence would fall under Section 304 Part-II of the IPC. 21. Accordingly, we alter the conviction of the appellants from one under Section 302/34 of IPC to that under Section 304 Part-II of the IPC. We hereby sentence them to undergo R.I. for 10 years. Since the appellants are in jail since 05/03/2013 i.e. for more than ten years, they appellants be released forthwith, if their detention is not required in any other case. 22. Accordingly, both of these criminal appeals are allowed to the extent indicated herein-above. 23. Let a certified copy of this judgment be sent to the concerned trial Court as well as the jail authorities for information and compliance.