The main legal point established in the judgment is the admissibility and interpretation of the confession made by the accused, the first information report, and the misinterpretation of legal provisions by the learned Additional Sessions Judge.

JAGAT NARAYAN, J.

( 1 ) BAL Chand respondent was tried of charges under Sections 302, 326 and 380 I. P. C. for having committed the murder of one Nath Mal in his shop at village Sadri at about 3 p. m. on 19-9-55, for biting of a portion of his wifes nose on the same day inside his own house, and for stealing the dagger Ex. 7 with which the murder was committed from the shop of one Kundan Mal Kharnia on the same day. Bal Chand admitted having killed the deceased at the time and place as alleged by the prosecution, but pleaded that his case was covered by Exception 1 to Section 300 I. P. C. The learned Additional Sessions Judge believed the version of the occurrence put forward by him and convicted him only under Section 304 (part I) I. P. C. and sentenced him to undergo rigorous imprisonment for 5 years. He also convicted him under Section 335 I. P. C. and sentenced him to undergo rigorous imprisonment for one year. He acquitted him of the charges under Sections 302 and 380 I. P. C. The State has filed the present appeal against his acquittal under Section 302 I. P. C.

( 2 ) WE have heard the learned Deputy Government Advocate and the learned counsel for the respondent and have perused the evidence on record; We are satisfied that the learned Additional Sessions Judge arrived at a perverse finding of fact. This was mainly due to a misunderstanding of the provisions of law.

( 3 ) THE prosecution case was that about a week before the occurrence the accused heard rumour that his wife was prosecuting an intrigue with Nath Mal deceased. The information was first given to him by Bal Chand son of Manak Chand. The accused made enquiries from various peysons including his wife and Nath Mal deceased. His wife and Nath Mal both denied that there was any truth in the rumour. On the day of occurrence the suspicion of the accused was confirmed as a result of his enquiries from one Mitha Lal Suthar at about 1 p. m. He immediately went to his house and esked his wife whether she had illicit intimacy with Nath Mal in the Kotri of the latter. She confessed that she had once had sexual intercourse with him. At this the accused lost his temper and bit off her nose. He then proceeded to take revenge upon Nath Mal. He first went to the shop of Kundan Mal son of Otagi Khatina to fetch a dagger. Kundan Mal was not present at his shop nor was any one else present there. He picked up a dagger along with a sheath and went to the shop of Nath Mal deceased. Nath Mal was found sitting inside his shop. He caught him by his hair and stabbed him on the chest with a dagger. Nath Mal fell down on the floor of the shop. The accused then inflicted some more injuries on him with the dagger and finally severed his head from his body. He picked up the head and went to the police out-post at Sadri along with the head and the dagger. There he lodged a report Ex. P. 1 at 3. 30 p. m. This report was taken down by Nathu Singh, Head Constable, who was incharge of the out-post.

( 4 ) THE accused admitted having killed the deceased with the dagger. He also admitted that after killing him he severed his head from his body and took the head to the police out-post along with the dagger with which he had killed Mm. But he alleged that he liad seen his wife Smt. Durga having sexual intercourse with Nath Mal in the shop behind an almirah at about 3 p. m. on the day of occurrence and killed the deceased under grave and sudden provocation. He denied having taken the dagger from the shop of Kundan Mal. He alleged that he picked up the dagger from the almirah lying in the shop of Nath Mal.

( 5 ) IN support of the prosecution case a number of witnesses were examined. It may be mentioned here that on 20-9-55 the accused was produced before Shri Umed Singh Magistrate First Class Bali for recording his statement under Section 164 Cr. P. C. The Magistrate told him that it was not necessary for him to make a statement and that if he made it it could foe used in evidence against