SHARMA, J. - (1.) ILLICIT relations between Ratan Lal and Smt. Kailashi, the wife of Ganesh Lal were well known in village Kheruna. On July 30, 1999 Ratan Lal was found murdered in the house of Ganesh Lal. Information in regard to murder of Ratan Lal was communicated by an unknown person over telephone to Krishna Kant. SHO Police Station Nainwa on July 30, 1999 at 5. 30 AM, who rushed to the place of occurrence and found dead body of Ratan Lal in the room belonging to Ganesh Lal. Sukh Lal, the father of Ratan Lal who was present there, submitted a written report wherein it was stated that his son left the house after taking meals at 8 PM on the previous night and did not return to the house. On being searched he came to know that he was murdered and his dead body was lying in the house of Ganesh. On the basis of said report case under Section 302/34 IPC was registered and investigation commenced. Ganesh Lal, the appellant herein, along with Hari Narain @ Harnarayan, Smt. Kailashi and Sunder Lal, were placed on trial in Sessions Case No. 39/2001, before learned Additional Sessions Judge (Fast Track) No. 2, Bundi, who vide judgment dated October 18, 2001 acquitted co-accused Hari Narain @ Harnarayan, Smt. Kailashi and Sunder Lal, but convicted and sentenced the appellant under Section 302 IPC to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer six months imprisonment.
(2.) LEARNED counsel for the appellant vehemently criticised the impugned finding and urged that the appellant has been convicted only on the basis of suspicion. There is no eyewitness of the occurrence and the circumstantial evidence produced by the prosecution is very feeble in character. It is alternatively contended that even if it is found that the appellant is guilty, charge under Section 302 IPC is not made out against him. Elaborating his submissions learned counsel canvassed that on the basis of the facts of the case, this possibility cannot be ruled out that seeing his wife with the deceased in a compromising position, the appellant would have lost self control and killed the deceased. The case of appellant thus comes within the purview of Exception 1 to Section 300 IPC. On the other hand learned Public Prosecutor supported the impugned judgment and urged that the prosecution has established the charge under Section 302 IPC against the appellant by cogent and trustworthy evidence. On scanning the material on record we notice following undisputed facts:- (i) In the charge sheet it was the specific case of the prosecution that the deceased had illicit relations with Smt. Kailashi, the wife of the appellant. In their statements under Section 161 Cr. P. C. witnesses Ram Kalyan (Pw. 1), Kailashi Bai, the wife of deceased (Pw. 6), Shanker Lal (Pw. 7), Banshi Das (Pw. 8), Bheru Lal (Pw. 11), Sukh Lal (Pw. 12), Jagdish (Pw. 14) and Ram Narayan (Pw. 15) had stated that this fact was well known in village Kheruna that Ratan Lal and Smt. Kailashi, the wife of appellant, had illicit relations. At the trial however these witnesses disowned their police statements. (ii) Deceased Ratan Lal had gone to the house of appellant and Smt. Kailashi at 8 PM on July 29, 1999 and in the morning i. e. , at 5. 30 AM on July 30, 1999 he was found murdered inside the house of the appellant. (iii) According to post mortem report (Ex. P-23), deceased had sustained as many as 21 antimortem injuries on the various parts of his body, out of which following injuries were on thighs and scrotum:- (10) Contusion 3" x 1/2" at medial aspect of upper 1/3 of Right thigh in transversly placed. (11) Contusion 1 1/2" x 1/4" anterior aspect of Right thigh situated 4" below anterior superior iliac spine. (12) Contusion 2 1/2" x 11/2" at medial aspect of left thigh, at junction of upper 1/3 and lower 2/3 horizontally placed. (13) Contusion 3" x 1" at left thigh situated 4" below the left anterior superior iliac spine obliquely placed. (14) Contusion 5" x 1" at anterior aspect of left thigh situated 2" below the injury No. 13. (15) Contusion 3" x 1" at anterior aspect of left thigh situated2" below the injury No. 14. (16) Contusion 1/2" x 1 1/2" at right side of scrotum. " Dr. Vinit Kumar Gupta (Pw. 18), who performed autopsy on the dead body, opined as under:-      " In my opinion cause of death is due to hemorrhage as a result of multiple wounds. Since smegma is present hence I am of opinion that he has not performed sexual intercourse within 24 hours of death. " (iv) Appellant Ganesh had also sustained nine injuries which were examined after his arrest vide injury report Ex. D-1 on July 31, 1999. Having analysed circumstantial evidence adduced at the trial we find that the prosecution has established beyond reasonable doubt that finding the deceased in his house at late hours of night the appellant and the deceased fought together. As many as seven injuries were found on the thighs and scrotum of the deceased. It also appears that Autopsy Surgeon was specifically asked by the Investigating Officer to give his opinion as to whether the deceased prior to his death, committed sexual intercourse or not? The Autopsy Surgeon therefore opined in the Postmortem Report that since smegma was present the deceased had not performed sexual intercourse prior to his death. Thus from the facts and circumstances of the case, this possibility cannot be ruled out that while the deceased and the wife of appellant were alone in the house of appellant and about to accomplish sexual intercourse, the appellant suddenly reached the house and seeing the wife in a compromising position with the deceased, the appellant got provoked, lost his self-control and inflicted injuries on the person of the deceased. It is important to emphasise that the impact of provocation on human frailty is to be judged in the context of the social position and environments of the person concerned. The restraint which is generally shown by sophisticated persons used to modern living is hardly to be expected in the case of a village who still regards a wife as his personal property and chattel. The law is now well settled that Exception I to Section 300 IPC can apply only when the accused is shown to have been deprived of the power of self control by grave and sudden provocation which is caused by the person whose death is caused. 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 he was placed would be so provoked as to lose his self control and the provocation must be much as would upset not merely a hot-tempered or highly sensitive person but one of ordinary calmness. In K. M. Nanawati vs. State of Maharashtra (AIR 1962 SC 605) their Lordships of the Supreme Court laid down the test of reasonability as depending upon the customs, manners, way of life, traditional values etc. of the accused, so that in this context a reasonable man is one who is of the same cultural, social and emotional background of the society to which the accused belongs. In Niranjan Singh vs. Empror (AIR 1930 Lahore 172) it was observed that a person finding his wife and her paramour in flagrant delicto admittedly receives the highest provocation and if he kills one or both, he is entitled to the benefit of Exception 1.
(3.) IN the facts and circumstances of the instant case we are of the firm view that the appellant had caused the injuries on the person of deceased while he deprived of the power of self-control by the grave and sudden provocation and his case comes clearly under Exception 1 to Section 300 IPC and he is, therefore, guilty under Section 304 Part I IPC only. For these reasons, we partly allow the appeal of appellant Ganesh Lal and instead of Section 302, we convict him under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for ten years and fine of Rs. 5000/-, in default to further suffer six months rigorous imprisonment. The impugned judgment of trial Court stands modified as indicated above. .;