JUDGMENT Ratnavel Pandian, J: The accused, aged about 25, in Sessions Case No.57 of 1983 on the file of the Court of the Additional Sessions Judge, North Arcot Division at Vellore, has preferred this Criminal Appeal, canvassing the correctness of the Judgment made in the above case, convicting him underS.302,I.P.C. and sentencing him to suffer imprisonment for life. 2. The Appellant took his trial on the allegation that on 11.2.1983 at about 3.30 P.M. at Devanampet Village, he caused the death of one Ganesan, the paramour of his wife, by cutting him with a koduval on his neck and face. 3. To prove the above allegations, the prosecution has examined P.Ws.1 to 12, filed exhibits P1 to P20 and marked M.Os.1 to 5. 4. The brief facts of the case, as disclosed from the oral and documentary evidence, can be stated as follows: The accused was owning lands and a house in the village called Devanampet and living there. He married one Kuppu two years before the occurrence. The deceased was working under the accused and used to have his food there. Ten days before Pongal, the accused, who had been to his field for irrigating his land, returned home at about 7 P.M., as there was no water. He saw his wife and the deceased talking together near the hut. He entertained a suspicion, but he did not make any complaint to any one. On the next day, he was hiding himself and saw deceased coming to his hut. Some time thereafter, his wife Kuppu also came there. The accused witnessed both his wife and the deceased having sexual intercourse, the next day he informed this matter to the elders and asked them to advise his wife. His wife Kuppu was taken to her aunt's house. Four days thereafter, she was brought back by the accused, on the advice of one Andi, who told the accused that he had already advised the accused's wife to behave properly thereafter. The accused and his wife lived happily for four days. On the fourth day, the accused sustained an injury on his head when he was repairing a pump-set. His brother took him to the hospital, since the injury was a serious one. At about 7 p.m., the accused returned home. At about 2.30 a.m., his wife got up and opened the rear door. On the fourth day, the accused sustained an injury on his head when he was repairing a pump-set. His brother took him to the hospital, since the injury was a serious one. At about 7 p.m., the accused returned home. At about 2.30 a.m., his wife got up and opened the rear door. On suspicion, the accused went and saw the deceased and his wife lying together. On seeing the accused, the deceased ran away. The accused questioned his wife as to why she was behaving like that, to which his wife Kuppu replied that since the accused had complained to elders, she would behave only like that. The accused was terribly upset. On the next morning, the accused told the deceased that he should not betray him. The deceased replied that the accused was not mentally all right and was only admitted in the Mental Hospital at Bagayam, and that if the accused made any complaint about him, he would inform every one in the village that the accused had again become mentally deranged, the deceased also threatened the accused saying that he would break his limbs. On the date of the occurrence, at about 3 P.M., the accused went to his field to repair the pumpset. His wife brought meals to him. Since there was no ladder, he went to cut two poles for a ladder with a koduval. At that time, P.Ws.1 and 2 and the deceased were removing paddy sapplings. The accused told P.W.2 that he wanted two poles for ladder. P.W.2 asked him to take it if they were available. On seeing the deceased, the accused lost his mental balance, got angry and gave a cut on the neck of the deceased twice with a kodaval. When P.W.1 intervened, the cut fell on the right cheek of the deceased. The accused ran away from that place. P.Ws.1 and 2 bandaged the injury of the deceased and took him in a cart to the hospital. But the deceased died enroute. The dead body was brought back to the village. 5. After the occurrence, the accused metP.W.5, who was grazing sheep, and on being questioned by P.W.5, the accused told him that he had cut the person who was keeping his wife. He borrowed Rs.5 and P.W.5. and ran away. 6. But the deceased died enroute. The dead body was brought back to the village. 5. After the occurrence, the accused metP.W.5, who was grazing sheep, and on being questioned by P.W.5, the accused told him that he had cut the person who was keeping his wife. He borrowed Rs.5 and P.W.5. and ran away. 6. At about 4.30 P.M., the accused saw P.W.6 in his field and wanted something to eat and something to wear. The he wanted to go to Vellore and asked for bus charge. He also told P.W.6. that he had cut the person who was having illicit affairs with his wife. The accused told him that he was having Rs.5 and wanted 10 paise more for the bus charge. The accused got 10 paise and a lungi M.0.5 from P.W.6. 7. Meanwhile, P.W.1, on the advice of Pachayappa Udayar, went to Kalasapakkam Police Station and gave a report, Ex.P1 to P.W.11, the Sub Inspector of Police, who registered the same as a case in Crl. No.25 of 1983 underS.302,I.P.C. He prepared express reports and sent them to the Superior officials. P.W.12, Inspector of Police, on information went to the police station at 8.15 P.M., and took up investigation. P.W.12 reached the scene at 9 P.M., held inquest between 9 P.M. and 11.45 P.M., and examined P.Ws.1 and 2 others. Ex. P19 is the inquest report. After the inquest, he sent the dead body for post-mortem examination. At 6 A.M. on 12.2.1983, he prepared an observation, mahazar, Ex.P4 and the rough sketch, Ex.P20. At 7.15 A.M., he seized M.O.4 towel, and M.O.3 blood stained earth under Ex.P5. On the same day at 4 P.M., on information he arrested the accused, and examined him. The accused volunteered statement, the admissible portion of which is Ex.P6. In pursuance, of Ex.P6, the accused took P.W.12 to a place by the side of a well, where from he took M.O.1, which he had concealed in a bush and produced the same. P.W.12 seized it under the mahazar, Ex.P7. M.0.6 was also seized. 8. P.W.3, the Medical Officer, conducted postmortem examination over the dead body of the deceased at about 10.30 A.M. on 12.2.1983, and found the following injuries: — 1. An incised wound with clean cut edges over right side of face. P.W.12 seized it under the mahazar, Ex.P7. M.0.6 was also seized. 8. P.W.3, the Medical Officer, conducted postmortem examination over the dead body of the deceased at about 10.30 A.M. on 12.2.1983, and found the following injuries: — 1. An incised wound with clean cut edges over right side of face. The wound was situated to the right of right eye and was obliquely placed, extending from the hair line upto a point about 1” below anterior to the right of right eye. The wound was of the size 3” x 1” x 1”. On dissection there was a linear fracture of 1” in length of outer table of frontal bone and there was fracture of lateral wall of right orbit. 2. An incised wound with clean cut edges over right side of neck. The wound was about 3” x 4” above the right collar bone and parallel to collar bone. The wound was of size 3” x 1/4” x 1/4”. 3. An incised wound with clean cut edges over right side of the neck. The wound was about 1/2” above injury No.2 and run parallel to it It was of size 3” x 1” x 1.1/2”. The muscles (platysma, sternomastoid and oma hyoid) the blood vessels (common carotid artery and internal jugular vein) and gagus nerve were clean cut. On dissection, there was fracture of transverse process of 4th cervical vertebra on right side. According to the Medical Officer, the deceased would appear to have died of haemorrhage and shock due to injuries sustained 15 to 20 hours prior to post-mortem examination. He would further state that the injuries were sufficient to cause instantaneous death and that these injuries could have been caused by a weapon like M.O.2. Ex.P3 is the postmortem certificate issued by him. 9. P.W.12 sent a requisition Ex.P10 to record the confessional statement of the accused. P.W.9. the judicial II class Magistrate, Tiruvannamalai, after observing all the statutory formalities and administering the necessary warnings and also after affording sufficient time for reflection, recorded the confession of the accused on 17.2.1983 under Ex.P13. Exs.P11 and P12 are the proceedings of the preliminary and final warnings given to the accused. P.W.9 appended the statutory certificate Ex.P14 to Ex.P13. 10. After completing the investigation, P.W.12 laid the charge sheet against the accused on 22.3.1983. 11. The accused had pleaded guilty to the charge. Exs.P11 and P12 are the proceedings of the preliminary and final warnings given to the accused. P.W.9 appended the statutory certificate Ex.P14 to Ex.P13. 10. After completing the investigation, P.W.12 laid the charge sheet against the accused on 22.3.1983. 11. The accused had pleaded guilty to the charge. Even in his statement underS.313, Crl. P.C., the accused has admitted the entire evidence, but added that he attacked the deceased on the provocation which he has sustained on account of the conduct of the deceased having illicit connection with his wife and also on account of a sudden provocation caused by the deceased at the time of the occurrence, saying that the accused was feminine in character. 12. The learned trial Judge, for the reasons assigned in his judgment, has found that the accused has committed the offence underS.302,I.P.C., and consequently convicted and sentenced him as aforementioned. 13. Mr. V. Gopinath, learned counsel appearing on behalf of the accused, would confine his arguments only to the nature of the offence committed by the accused. According to the learned counsel, there are sufficient evidence and impelling circumstances indicating that the accused had entertained a sustained provocation on account of the conduct of the deceased in having illicit connection with his wife and also on account of the sudden provocative words uttered by the deceased at the time of the occurrence while he was asking P.W.2 to give him two poles. So far as the occurrence is concerned, we have got the testimony of P.Ws.1 and 2. These two witnesses would state that it was the accused who gave the two cuts on the deceased with M.O.1 and ran away from that place. The evidence of P.Ws.1 and 2 is not challenged. In fact, the accused himself would admit the evidence of P.Ws.1 and 2 as true in his statement underS.313, Crl. P.C. We have also carefully gone through the evidence of these two witnesses, and we find no reason to discard their testimony. 14. The weapon of offence in this case (M.O. 10 has been seized by P.W.12 on being produced by the accused, and this weapon is shown to have been stained with human blood, though the result of the test was inconclusive for ascertaining the group of the blood. Apart from the oral testimony and the recovery of the weapon, P.Ws. 14. The weapon of offence in this case (M.O. 10 has been seized by P.W.12 on being produced by the accused, and this weapon is shown to have been stained with human blood, though the result of the test was inconclusive for ascertaining the group of the blood. Apart from the oral testimony and the recovery of the weapon, P.Ws. 5 and 6 staled that the accused made an extra judicial confession to them stating that he had cut the person who was having illicit connection with his wife. Thus, the prosecution has established that it was the accused who had perpetrated the attack on the deceased. 15. Now, the question is, what is the nature of the offence that the accused has committed. The accused has pleaded for the benefits of the Exception toS.84,I.P.C. But that plea of Exception has not been rightly accepted by the Court below. There is no sufficient evidence to hold that the accused was suffering from insanity. A careful reading of the judicial confessional statement of the accused given under Ex.P13 reveals that the deceased, who was employed under the accused, has betrayed the accused and developed illicit intimacy with the wife of the accused, viz., kuppu. Though the accused found the deceased and Kuppu talking in a lonely place at odd hours, he did not make any complaint to the elders. According to him, he thought by making such complaints, he would be bringing disgrace to the entire family. He wanted for an occasion to confirm his doubts about the relationship of the deceased with Kuppu. He states that one day he saw the deceased and Kuppu having illicit intercourse, and on seeing that, he was shocked. It was thereafter he reported the matter to the elders. Kuppu left for her parents’ house. Four days thereafter, on the advice of Andi, the uncle of Kuppu, the accused brought her back to the house. But even then the deceased had not severed is illicit connection with Kuppu, the accused brought her back to the house. But even then the deceased had not severed his illicit connection with Kuppu, but he continued to have the same. Four days thereafter, he saw the deceased and his wife Kuppu lying together in the rear side of his house. But even then the deceased had not severed his illicit connection with Kuppu, but he continued to have the same. Four days thereafter, he saw the deceased and his wife Kuppu lying together in the rear side of his house. It was about 2.30 A.M. Thus, the accused has stated in his judicial confession that he had sustained provocation in his mind as against the deceased since the deceased in whom he had reposed confidence, had betrayed him and also developed intimacy with his wife. 16. When the matter stood thus, according to the statement of the accused underS.313, Crl.P.C, at the time of the occurrence when the accused asked for two poles from P.W.2, the deceased who was there, made a remark stating “which means that the accused who is feminine in character, was asking for two poles. According to the accused, it was only at this point of time, he gave the two cuts on being suddenly and gravely provoked. As the prosecution itself is relying on the confessional statement of the accused under Ex.P13, we have no reservation in accepting the case of the accused that he cut the deceased on account of the sudden and grave provocation caused by the deceased and also on account of the sustained provocation the accused has been nurturing for a long period because of the conduct of the deceased in having illicit intimacy with his wife. Hence, we hold that the accused is entitled to Exception 1 toS.300, I.P.C. In view of the above finding, we are of the view that the conviction recorded by the learned trial Judge underS.302 , I.P.C., and the sentence of imprisonment for life imposed therefor, cannot be sustained and instead he has to be convicted only under section 304 (Part-I), Indian Penal Code. 17. We accordingly set aside the conviction under section 302 , Indian Penal Code and the sentence of imprisonment for life, and instead we find the accused guilty under section 304 (Part-I), Indian Penal Code convict him thereunder and sentence him to suffer rigorous imprisonment for five years. Subject to the above modification, the criminal appeal is dismissed. B.S. ----- Petition allowed.