JUDGMENT M.M. Pareed Pillay, J. 1. State has filed Criminal Appeal No. 539 of 1986 challenging the convictionand sentence against the accused in Sessions Case No. 43 of 1986. Criminal" Appeal No. 543 of 1986 is filed by the accused. The accused was chargedunder S.302 of the I. P. C. The learned Sessions Judge found him guilty underS.304 part I of the I. P. C. and convicted and sentenced. him to undergorigorous imprisonment for seven years. 2. The prosecution case is that the accused suspicious of his wife's chastitymanhandled her on 1-2-1986 causing her death. P.W.1, an eye witness,lodged the first information statement. It was recorded by P. W. 15. A crimewas registered and investigation was conducted by P. W. 16, the CircleInspector of Police. Accused denied his complicity with the crime whenquestioned under S.313 Cr.P.C. 3. The prosecution mainly relies on the ocular testimony of P. Ws 1 to 4, 6 and7. Though P. W. 5 was cited as an eye witness, he did not support the prosecution case. 4. P. W. 1 resides on the east of the accused's house. P. W. 1 deposed that aday prior to the death of Thankamma (deceased) he saw her running to hiscourtyard at 6.30 p.m. followed by the accused. According to P.W. 1, theaccused fisted on her back. She fell down. P.W.1 intervened and entreated theaccused not to beat her. Accused dragged her from there. On the next daymorning he knew about the death of Thankamma. Immediately he went to thePolice Station and gave the first information statement. 5. P. W. 2 resides south - east of the accused's house. It is her evidence thaton 1-2-1986, at about 6.30 p.m., while she was standing in her courtyard shesaw the accused dragging his wife through the western pathway. P. W. 2asked the accused why he was quarrelling with his wife. Accused told P. W. 2about her illicit intimacy with P. W. 7 Chandrappan. Saying so, accused fistedtwice on her chest. Thankamma fell down crying aloud. P. W. 2 gave her somewater as requested by her. Even before Thankamma could finish drinking thewater accused kicked on her chest, as a result of which she fell down. P. W 2has sworn that the accused caught hold of his wife's tuft and dragged hertowards the south. P. W. 2 knew about the death of Thankamma on the next day morning. 6. Even before Thankamma could finish drinking thewater accused kicked on her chest, as a result of which she fell down. P. W 2has sworn that the accused caught hold of his wife's tuft and dragged hertowards the south. P. W. 2 knew about the death of Thankamma on the next day morning. 6. P. W. 3 saw the accused and his wife going to the west through the ridgenorth of his house. He heard the accused chastising his wife for her infidelityand the latter pleading innocence. P. W 3 saw the accused fisting his wife andshe falling down. At about 10 p. m. P. W 3 heard a cry from the house of theaccused. Next day morning at 5 a. m. accused went to P.W.3's house andinformed her about the death of his wife. 7. P.W. 4 is a watcher in the nearby shed of prawns breeding field. On1-2-1986 at about 6.30 p m. P.W. 4 saw the accused and his wife engaged ina quarrel. He enquired the accused the reason for the quarrel. Accusedinformed him about his wife's illicit relationship with P.W. 7 Chandrappan. Atthe instance of the accused P. W. 4 asked Thankamma about it. She flatlydenied any such relationship. Accused fisted his wife on her abdomen andhead. Accused kicked on her abdomen and she fell down to the channel. P.W. 4 implored the accused not to beat her. Accused dragged her to his house. 8. P.W. 6 is another watcher of prawns breeding farm. He saw the accusedpushing and leading his wife towards the west. She shouted that she wasbeing taken by her husband to be killed. PW. 6 heard a sound from the houseof the accused at 10 p m. On the next day morning he knew about the death of Thankamma. 9. Learned defence counsel contended that the ocular testimony of thewitnesses is too artificial to be believed. There is no merit in the abovecontention as the evidence discloses only a true narration of the incidentwithout any embellishment or exaggeration. Cross examination of the eyewitness does not unfold any infirmity or suspicion to discard their evidence.Without bringing out any material or circumstance to discredit the testimony ofthe witnesses the defence counsel cannot for the first time make any fancifulsuggestion that the witnesses could not have seen the incident as they are notneighbours to, the place of occurrence. Cross examination of the eyewitness does not unfold any infirmity or suspicion to discard their evidence.Without bringing out any material or circumstance to discredit the testimony ofthe witnesses the defence counsel cannot for the first time make any fancifulsuggestion that the witnesses could not have seen the incident as they are notneighbours to, the place of occurrence. The eye witnesses testified to theirpresence at the place of incident. So long as their evidence is not shown to betainted or distorted or pratisan or utterly false by effective cross examination orbringing out sufficient materials to that effect, it is meaningless to assail it onthe basis of fanciful assertions or suggestions. In other words, if a witnesstestifies that he happened to be a witness to the incident as he resides in theneighbourhood and if no challenge is made to the above evidence in crossexamination or if no attempt is made to disprove it by other tangible evidence,it will be a sheer exercise in futility to advance a bald contention that what hehas stated is false. Position will be different if the evidence is liable to beassailed as inherently improbable. Presence of eye witness cannot be doubtedwhen no specific question was put to him in cross examination regarding hispresence. In other words, inference of non presence cannot be based on afragile foundation of conjunctures or surmises. On imaginary and speculativereasons evidence B unchallenged in cross examination cannot be assailed. 10. The ocular testimony of the witnesses is fully corroborated by the medicalevidence. The post mortem certificate reveals that the deceased hadsustained 16 injuries. Most of them are abrasions and contusions P.W.12 whoconducted autopay, stated that the cause of death was due to injuries 1 and10 mentioned in Ext. P4 post mortem certificate. He opined that those twoinjuries were sufficient in the ordinary course of nature to cause death. 11. The learned Sessions Judge accepted the evidence of the eye witnessesand held that the prosecution has proved the incident to the hilt. The trialJudge after holding so, held that "the defence is certainly entitled to argue onaccount of these circumstances that injuries 1 and 10 as noted in Ext. P4 wereinflicted by the accused as a result of a grave and sudden provocation, whenthe accused was deprived of the power of his self control. The trialJudge after holding so, held that "the defence is certainly entitled to argue onaccount of these circumstances that injuries 1 and 10 as noted in Ext. P4 wereinflicted by the accused as a result of a grave and sudden provocation, whenthe accused was deprived of the power of his self control. There is hardly anyevidence to show that the accused was deprived of the power of his selfcontrol by any act or utterance of his wife. The evidence in the case, asspoken to by eye witnesses, clearly shows that the accused was dragging hiswife from one place to another while assaulting her incessantly. Accused'ssuspicion of his wife's illicit intimacy with P. W. 7 cannot be considered as acircumstance to hold that the accused lost his self control due to any suddenand grave provocation. While questioned under S.313 Cr. P. C., accused doesnot have a case that he lost his power of self control and on account of it theincident happened. The trial Judge went wrong in holding that injuries 1 and10 were inflicted by the accused while he was deprived of his power of selfcontrol due to sudden and grave provocation. That being the position, theoffence committed by the accused would come only under S.302 of the I.P.C. 12. On a consideration of the entire evidence, we hold the accused guiltyunder S.302 of the I. P. C. for having caused the death of his wife. Weaccordingly convict the accused under S.302 of the I.P.C. and sentence him toundergo imprisonment for life. The State appeal is allowed and the appeal filed by the accused is dismissed.