Grave and sudden provocation, when established as a sudden loss of self-control upon discovering a spouse in a compromising position, brings an act within Exception 1 to Section 300, upgrading murder to culpable homicide not amounting to murder provided there was no premeditated intent.

JUDGMENT

1. The present appeal is filed by the appellant, who came to be convicted under Section 304 Part-II of the Indian Penal Code (I.P.C. for short) by the judgment and order dated 12.09.2001 passed by the Additional Sessions Judge, Panchmahal, Godhra in Sessions Case No.100 of 1998, whereby the appellant was ordered to serve sentence of five years rigorous imprisonment with fine of Rs.3,000/- and in failure of payment of fine further three months simple imprisonment.

2. The case of prosecution, as per the charge Exh.2 is that on 31.07.1997, at about 00:30 hours, the accused–appellant at his residence situated at G.E.B. Quarter in E/2, found his wife - Dhirajben in an illicit relation with her lover, Harshadkumar R.Sharma and at that time, the deceased threatened the accused–appellant, that if he comes between them, he would not be allowed to live.

2.1 It is further alleged that the accused–appellant assaulted deceased by giving fist and kick blows, and with intention to kill dashed her with the wall, and inflicted blows with a deadly weapon like a wooden log, thereby causing bodily injuries which were sufficient in the ordinary course of nature to cause death. As a result of the said injuries, the deceased succumbed to death and thereby, accused was charged for an offence punishable under Section 302 of the Indian Penal Code.

3. Learned advocate Mr. V.D. Parghi for the appellant submitted that the judgment of conviction passed by the learned Trial Court Judge is without appreciating the evidence on record and the law laid down by the Hon’ble Supreme Court. Mr. Parghi stated that the learned Trial Court Judge ought to have considered the evidence on record that the wife of the accused i.e. the deceased had developed illicit relation with a co-employee of accused residing in the same colony.

3.1 Learned advocate Mr. Parghi submitted that the learned Sessions Judge has failed to take into consideration the fact that it was not an offence allegedly committed by the appellant. Mr. Parghi stated that if it is to be believed without admitting, it was not a pre-mediated crime, but was out of grave and sudden provocation as per the evidence on record. Mr. Parghi stated that the appellant’s wife had developed illicit relation with one Harshadkumar Sharma and were found in compromising position and when both were confronted by the appellant, the deceased wife threatened the appellant that if he comes in between them, he would not be allowed to live, and that had enraged the appellant, as a consequence he lost his self-control.

3.2 Learned advocate Mr.Parghi further submitted that after marriage, the appellant and his wife were having a son named Kishan aged about four years at the time of incident. Mr. Parghi stated that the said act on the part of his wife was in no circumstances pardonable act on the part of any man of prudence. Mr. Parghi submitted that the learned Trial Court Judge has failed to take into consideration that the act of intimate relationship witnessed by the appellant in his own house at odd hours at 12:30 at mid-night which gave grave and sudden provocation to the appellant, led him to assault