D. G. DESHPANDE, J.

( 1 ) HEARD advocate Mrs. Revati Mohite-Dere for the appellant/accused and learned APP Mr. D. R. More for the respondent/state.

( 2 ) THIS appeal is filed by the original accused challenging his conviction under Section 302 of the Indian Penal code by which he was sentenced to suffer life imprisonment and to pay fine of Rs. 1000/- in default to suffer R. I. for three months. He was also convicted under section 182 of the Indian Penal Code and sentenced to suffer R. I. for three months and to pay fine of Rs. 500/- in default to suffer R. I. one month.

( 3 ) SECTION 182 of the Indian Penal Code is regarding giving false information with intent to cause public servant to use his lawful power to the injury of another person.

( 4 ) THE prosecution case, in short, is as under :- the name of deceased is Smt. Damyanti kudale. The accused was paramour of deceased damyanti. He was rickshaw driver whereas deceased Damyanti was perhaps dealing with utensils. There was love affair and illicit relation between them since two years prior to the incident. Couple of days prior to the incident or so the accused had booked a room at samrat Lodge near Pune Railway Station and both of them i. e. the accused and deceased Damyanti stayed in that lodge. On 15. 1. 99 at about 4. 30 p. m. deceased Damyanti and the accused visited the house of witness Santosh Chandrakant Pise who was the son-in-law of deceased. They had a cup of tea and left the house. In the morning of that day, they had purchased a wrist watch for rs. 400/- They came back to the Samrat Lodge between 7 to 7. 30 p. m. in rickshaw bearing no. MB-14/l/9155. There a room was booked i. e. Room No. 120. Rickshaw was parked in the compound of lodge. While booking the room in the lodge, the accused gave his name as Ashok Kokate and that of Damyanti as Damyanti Kokate resident of alandi. Then according to the prosecution at about 10. 15 p. m. , opposite Deccan Sweet Mart, on foot-path in the area of Pune Railway Station there was quarrel between the accused and deceased Damyanti, the accused got irritated, he whipped out a knife and stabbed the deceased. Then the accused himself took the deceased to the sasoon Hospital, Pune where Damyanti died. The accused alleged to have disclosed that deceased damyanti was stabbed by a stranger. Then the matter was investigated, a charge sheet was filed and the accused came to be convicted as stated above. Hence this appeal.

( 5 ) THE counsel for the appellant/accused contended that as to what happened at the particular movement of stabbing was not witnessed by anybody and nobody knows anything about that. He also contended that so far as that aspect of the matter is concerned, the case is based on circumstantial evidence. But his main contention was that looking to the fact that there were illicit relations between the accused and deceased Damyanti and that some quarrel took place between them and by heat of passion the accused dealt only one single blow. But immediately taking the victim Damyanti in his own auto rickshaw to the Sasoon Hospital was a clear indication that the accused did not intend to cause death to the deceased. He, therefore, contended that at any rate there could be no conviction under Section 302 of the Indian Penal code and the case squarely fell under Exception-I of Section 300 of the Indian Penal Code where culpable homicide is not murder. Regarding grave and sudden provocation, the counsel for the accused drew our attention to the discovery memorandum under which the knife was recovered from the accused. The advocate for the accused fairly conceded that the discovery memorandum, as it is on record, may not be admissible in evidence so far as it relates to incriminating part, but the court can take into consideration the history and background of the assault given by the accused. This discovery memorandum is in the paper book. It is at Exhibit 45. In this statement, the accused has admitted that he had ill