The main legal point established in the judgment is the consideration of immediate provocation and the accused's mental state in categorizing the crime under Section 302 IPC or Section 304 (1) IPC.

Shabihul Hasnain, J.

Heard Sri Brijesh Yadav, learned counsel for the appellant as well as learned A.G.A. for the State.

2. This criminal appeal has been filed against the judgment and order dated 29.10.1981 passed by V Addl. Sessions Judge, Faizabad in Sessions Trial N.142 of 1981 (State Vs. Jag Prasad and others) by which accused Jag Prasad alias Digghi has been charged under Section 302 IPC and accused Ram Dayal and Ram Khelawan have been charged under Section 302 IPC read with Section 34 IPC for committing the murder of Hausila Prasad.

3. The prosecution case in brief is that Jag Prasad and Ram Dayal are the sons of Ram Khelawan accused. They and the complainant lived in Shiran Ka Purwa, hamlet of Maiher Kabir pur. The complainant belongs to Nai Biradari and the accused belong to Ahir caste. There are only 13 houses in that Purwa out of which 12 belong to the Ahir and one belongs to the Nai i.e. the complainant. In the month of Magh in the same year when the occurrence is alleged to have taken place, Hausila was scrapping grass where the wife of Jag Prasad was also scrapping. The wife of Jag Prasad told Hausila that she had no fodder to feed her cattle on which Hausila offered her Rs.20/- for purchasing fodder. The wife of Jag Prasad complained to Ram Khelawan on which Ram Khelawan complained to Ram Kripal that Hausila teases his daughter-in-law and shows money. Hausila narrated the whole incident but they were not satisfied by his explanation. Ram Khelawan asked them not to come to their door in future and refused to get the beard shaved by him. Since then they have left shaving the beard of the Ahirs. Two days before the occurrence a quarrel took place between Jag Prasad and the wife of Triveni. The wife of Triveni told Jag Prasad that Hausila was offering money to his wife and he could do nothing and showing himself to be very brave before her. Hearing this taunt Jag Prasad started abusing Hausila and Jag Prasad threatened to murder Hausila. Jag Prasad took his wife to her father's place after beating her and returned on the day of the occurrence. Due to this strained relations on 12.11.1980 at about sun set when Hausila went to ease himself and Ram Kripal was cutting the fodder, Jag Prasad on the instigation of Ram Dayal and Ram Khelawan murdered Hausila. He heard the noise of Hausila that Jag Prasad was murdering him. He and his brother's wife Smt. Anara Devi and Shiv Prasad rushed and saw Jag Prasad striking lathi on Hausila. Ram Khelawan and Ram Dayal were instigating Jag Prasad to murder him. When the accused saw them coming they fled away. Hausila fell on the ground. His head was broken. Ram Kripal tied Angochha on his head and brought him to their door and he died after 10 minutes. Ram Kripal went to the police station and lodged report at 8.30 p.m. A case under Section 302 IPC was registered. Sri Ram Suphal Sharma, S.O. Haiderganj was present at that time when the F.I.R. was lodged. He started investigating. He went on Jeep to the place of occurrence, found the dead body of Hausila at his door. He prepared Panchayatnama, photo lash, chalan lash and sealed dead body and gave it in the Supurdagi of Dan Bahadur and Ludhai Chaukidar. The body was sent for the post mortem examination in the early morning. He prepared site plan, recorded the statements of the witnesses and submitted charge sheet against the accused.

4. The dead body of Hausila was examined by Dr. A.H. Khan on 14.11.1980 at about 2 p.m. and he found the following anti mortem injuries on the dead body of Hausila :-

1. Abrasion 1.5 cm x 5 cm on the right side of the forehead 3 cm above the right eye brow.

2. Lacerated wound 4 cm x 1 cm x scalp deep on the left side head 8 cm above the posterior to left eye brow diagonally placed.

3. Contusion 3 cm x 2 cm on the front of lower part of chest 26 cm below left collar bone.

5. On internal examination a fracture of linear of the left temporal bone frontal bone under injury no.2 was detected. The left