Judgment :- Janarthanam, J. The appellant is the accused in S.C.No. 68 of 1986 on the file of Court of Session, Periyar Division at Erode. He was found guilty of offences punishable under Sec. 302 (two counts) and 323 of the Indian Indian Penal Code, convicted thereunder and sentenced to imprisonment for life for the offences under Sec. 302, I.P.C. (two counts), besides rigorous imprisonment for six months for the offence under Sec. 323, Indian Indian Penal Code, with a direction for the sentences to run concurrently. 2. Aggrieved by the said conviction and sentences, the present action had been resorted to. 3. The brief facts are: (a) The scenevillage Chettipalayam is a hamlet of No. 74, Puthur village situate within the limits of Dharapuram Police Station, 14 Kilometres away. The accused Rengasamy Gounder and his younger brother Govindasami Gounder are the residents of that village. Both the brothers reside separately. The house of the accused is situate a furlong away on the south of the house of his brother, Govindasami Gounder. One Natarajan and Balakumarasami are the sons of the accused. One Nachammal (since deceased) (hereinafter referred to as ‘D-1’) was the wife of Govindasami Gounder. The spouses were blessed with three daughters and a son, viz., Poonkodi (since deceased) (hereinafter referred to as ‘D-2’) Balamani, Subbulakshmi (P.W. 1) and Velusami. Their house is situate on the west of the north-south street, running on the east of the village facing north. There is a lane adjoining their house running north to south connecting Pollachi-Dharapuram main road running east to west situate on the north of the village. The house of one Nachammal (P.W. 2) is situate on the north-west of the house of Govindasami Gounder. It faces east. There is a Spinning Mill at Govindapuram. D-2 had been employed in the said Spinning Mill. One Saroja, Dhobi by caste, was her co-worker. They were thick friends. It so happened that the son of the accused, viz., Natarajan fell in love with the dhobi girl Saroja. (b) Some two years before the occurrence day, which event happened on 4.12.1985, the Dhobi girl Saroja eloped with Natarajan. Their marriage, however, took place subsequently. The accused was having obsession that D-2 (Poonkodi) and her mother D-1 (Nachammal) were responsible for his son Natarajan falling in love trap with Dhobi girl Saroja, resulting in their lawful wedlock. (b) Some two years before the occurrence day, which event happened on 4.12.1985, the Dhobi girl Saroja eloped with Natarajan. Their marriage, however, took place subsequently. The accused was having obsession that D-2 (Poonkodi) and her mother D-1 (Nachammal) were responsible for his son Natarajan falling in love trap with Dhobi girl Saroja, resulting in their lawful wedlock. As a consequence there was want of cordial atmosphere between the two families. The embittered relationship between them grew to such an extent that the family members of one family did not visit the other family even on auspicious and inauspicious occasions. (c) One year prior to the occurrence, D-2 Poonkodi was given in marriage to one Ramasami of Panaimarathupalayam. She was enceinte and came for delivery to her parental house at Chettipalayam. She was admitted in a private Nursing Home at Dharapuram and a few days prior to the occurrence, she gave birth to a female babe and after her discharge from the Nursing Home, she had been in her parental house for post-delivery care. (d) On the day of occurrence, at about 4 p.m. D-2 Poonkodi and her sister Subbulakshmi (P.W. 1) were alone present in the house. Her father Govindasami had been to Dharapuram in connection with some errand. Her sister Balamani, employed in the Spinning Mill, had gone out for work. Her mother Nachammal (D-2) went to fetch water. At that juncture, the accused, it is said, paid a courtesy call to their house. The accused enquired D-2 as to whether his wife paid a courtesy call during her stay in the Nursing Home. She replied in the negative. The accused, however, wanted to make some present to the new born babe and so saying, he took out some money from his pocket for making the presentation. D-2 went inside to take the babe in her arms before ever the presentation was made. The accused prevented D-2 from taking the babe saying that he was not interested in making any presentation either to her or to the babe; but he wanted to make some present for the sake of his brother. On hearing the same, D-2 repudiated the present made by him and asked him if he desired so, he could make the present to his brother, viz., her father himself. On hearing the same, D-2 repudiated the present made by him and asked him if he desired so, he could make the present to his brother, viz., her father himself. On hearing the same, the accused got wild and was stated to have proclaimed that he would not leave her (D-2) and her mother (D-1) to have a life in this world, inasmuch as they were solely responsible for arranging the marriage of his son Natarajan with the Dhobi girl Saroja. At that time, her mother D1 returned home fetching water in a plastic pot. On hearing what the accused had proclaimed, D-1 told the accused that if he desired to do so, there could be no objection on their part, without anticipating that what the accused had proclaimed, would be translated into action by him. The accused at once suddenly and unexpectedly took out a wooden pestle lying in front of that house and delivered four or five blows with the pestle on the head of D-1. On receipt of the blows, she fell down on her back her face facing the sky in front of her house. In the process of such thrashes, the tip of the pestle broke into pieces. He then hit on the left eye of D-1 with the broken end of the pestle. At that time, P.W. 1 and D-2 ran and made an attempt to prevent from D-1 receiving any blows at the hands of the accused. However, the accused delivered a blow with the same pestle with force on the head of D-2. On receipt of that blow D-2 ran away towards the house of P.W. 2 in a bid to save herself from the perilous consequences she was facing at the hands of the accused. The accused also chased her. In the process of such chasing, D-2 fell in front of the house of P.W. 2 with her back facing the sky. The accused delivered four or five blows on her head with the same pestle. In order to save the life of D-2, P.W. 1 rushed there and prevented the accused from delivering any further blows to D-2. The accused in such process, delivered a blow on the head of P.W. 1 with the pestle. In the process of such tussle, the pestle broke into pieces. In order to save the life of D-2, P.W. 1 rushed there and prevented the accused from delivering any further blows to D-2. The accused in such process, delivered a blow on the head of P.W. 1 with the pestle. In the process of such tussle, the pestle broke into pieces. P.W. 1, in a bid to avoid further blows on her person ran towards the house of Arumughasami. The accused on his part also chased, but that was prevented by one Appukutty and Subbaiah. Throwing away the broken pieces of the pestle, the accused ran away from the scene. (e) Soonthereafter a crowd gathered there. P.W. 1 returned and saw to her dismay, her mother Nachammal (D-1) and her sister Poonkodi (D-2) lying dead. The occurrence had been witnessed by P.W. 2 and P.W. 3 Balagurusami, the neighbours. (f) P.W. 7 was the then Village Administrative Officer of Puthur Village. When he was in his Office at Chatram Village at 6 p.m. P.W. 1 appeared before him and narrated the occurrence. He reduced her statement into writing and he read over the same to her and thereafter obtained her signature in it. Ex.P-1 is her statement. He took out a copy of the same, which is Ex.P-7. He handed over Exs.P-1 and P-7 to his Thalayari with a direction to hand over Ex.P-1 to the Station House Officer at Dharapuram Police Station and Ex.P-7 to court. (g) One Subramaniam, was the then Sub-Inspector of Police of Dharapuram Police Station. While he was incharge of the police station, at 7 p.m. he received Ex.P-1 and registered the same in Crime No. 454 of 1985 for the alleged offences under Secs. 302 and 307, Indian Indian Penal Code. He prepared express reports and handed over the express reports in person at 7.30 p.m. to P.W. 13 Inspector of Police, apart from despatching express reports to the concerned officials. (h) P.W. 13, Inspector of Police, on receipt of the express reports took up investigation and reached the scene village at 8 p.m. He inspected the scene place and prepared Ex.P-8 Observation Mahazar. He drew a rough sketch of the scene Ex.P-21. He caused the photographs to be taken of the scene by P.W. 9. M.Os. 11 to 19 are the photographs and their negatives. Between 8 p.m. and 12 midnight, he held inquest over the body of D-1. He drew a rough sketch of the scene Ex.P-21. He caused the photographs to be taken of the scene by P.W. 9. M.Os. 11 to 19 are the photographs and their negatives. Between 8 p.m. and 12 midnight, he held inquest over the body of D-1. During the inquest, he examined P.Ws. 1, 2 and others. Ex.P-22 is the inquest report. (i) In the process of holding the inquest, he found on the person of P.W. 1 injuries and after examining her, he sent hereto the hospital for treatment along with Ex.P-5 requisition. (j) Between 12 midnight and 1 a.m. (5.12.1985) he held inquest over the body of D-2. Ex.P-23 is the inquest report relating to her. During such inquest, he did not separately examine the witnesses and record their statements. He caused the bodies of D-1 and D-2 to be sent for the purpose of autopsy with a requisition Ex.P-2. The body of D-1 was handed over to constable P.W. 10 while thai of D-2 was handed oyer to constable P.W. 11, for the purpose of autopsy. (k) At 1.15 a.m., on 5.12.1985 he seized from the scene place M.O. 2 blood stained cement plaster, M.O. 3 sample cement plaster, M.O. 4 blood stained earth, M.O. 5 sample earth and M.O. 6 broken plastic pot under Ex.P-9 mahazar. At 1.30 a.m. he seized from near the place where the body of D-2 was lying M.O. 7 blood-stained earth and M.O. 8 sample earth, under Ex.P-10 mahazar. At 2 a.m. he seized M.O. 11 series, broken pieces of pestle under Ex.P-11 mahazar. Exs.P-8 to P-11 were attested by P.W. 7 and another. (1) In the meanwhile P.W. 6, the then Civil Assistant Surgeon attached to the Government Hospital, Dharapuram, on 4.12.1985 by 11.30 p.m. on receipt of the requisition, Ex.P-5, examined P.W. 1 as to certain injuries said to have been caused to her due to assault with ulakkai. He found on her a lacerated injury 2" x 1/2" x 1/4" over the left side of the scalp. Ex.P-6 is the wound certificate. he would opine that the injury is simple in nature. (m) P.W. 5 was the then Civil Assistant Surgeon attached to the Government Hospital, Dharapuram. Pursuant to the requisition, Ex.P-2 he conducted autopsy over the body of deceased Poonkodi (D-2) at 11.30 a.m. on 5.12.1985, Ex.P-4 is the post-mortem certificate issued by her. Ex.P-6 is the wound certificate. he would opine that the injury is simple in nature. (m) P.W. 5 was the then Civil Assistant Surgeon attached to the Government Hospital, Dharapuram. Pursuant to the requisition, Ex.P-2 he conducted autopsy over the body of deceased Poonkodi (D-2) at 11.30 a.m. on 5.12.1985, Ex.P-4 is the post-mortem certificate issued by her. She would opine that the injuries found and described in Ex.P-4 could have been caused by assault with a weapon like M.O. 1 series and death could have been instantaneous. After autopsy was over, P.W. 11 constable recovered M.O. 24 Nylon Saree, M.O. 25 Jacket M.O. 26 Petticoat, M.O. 27 series four minji, M.O. 28 series broken glass bangles and M.O.29 series a pair of gold nose screws and M.O. 30, thali thread and handed them over at the police station. (n) P.W. 4, was the then Civil Assistant Surgeon, Government Hospital, Dharapuram. Pursuant to the requisition Ex.P-2 she held autopsy over the body of Nachammal (D-1) at 1.15 p.m. Ex.P-3 is the post mortem certificate. She would opine that the injuries found and described in Ex.P-3 could have been caused by assault with a weapon like M.O. 11 series. She would further opine that injury No. 4 is sufficient in the ordinary course of nature to cause death. After the autopsy was over, P.W. 10 constable recovered M.O. 20 cotton saree, M.O. 21 jacket, M.O. 22 thali thread, M.O. 23 series silver minji (four in number) and handed over the same at the police station. (o) P.W. 13 examined P.Ws. 3, 4, 5 and 7 on 5.12.1985. On 7.12.1985, he examined P.Ws. 9 to 11. On 10.12.1985 at 3 p.m. he arrested the accused near Palladam bus stand. On interrogation, the accused voluntarily gave a statement, the admissible portion of which is Ex.P-12. Pursuant to the said confession, the accused took out and produced M.O. 9 Dhothi and M.O. 10 shirt, kept concealed in the garden salai of his son-in-law Periasami. P.W. 13 recovered M.Os. 9 and 10 and seized under Ex.P-13 Mahazar. Exs.P-12 and 13 were attested by P.W. 8 and another. On the same day, he examined P.W. 8. On 11.12.1985, he sent the accused to court for remand. Thereafter, he sent Ex.P-14 requisition to the Judicial First Class Magistrate, Dharapuram for the purpose of sending the seized incriminating material objects to Chemical Examiner for the purpose of examination. Exs.P-12 and 13 were attested by P.W. 8 and another. On the same day, he examined P.W. 8. On 11.12.1985, he sent the accused to court for remand. Thereafter, he sent Ex.P-14 requisition to the Judicial First Class Magistrate, Dharapuram for the purpose of sending the seized incriminating material objects to Chemical Examiner for the purpose of examination. (p) P.W. 12 was the then Head Clerk, Judicial Magistrate’s Court, Dharapuram. On receipt of Ex.P-14 and the incriminating material objects, the material objects had been packed separately and sealed in the presence of the Magistrate and sent to the Chemical Examiner for the purpose of examination, under the original of Ex.P-15 (copy of letter) Exs.P-16 and P-17 are the reports of the Chemical Examiner and Serologist, respectively and Exs.P-18 and P-19 are the Additional reports of the Chemical-Examiner. Ex.P-20 is the printed F.I.R. sent to court. (q) On 27.12.1985, P.W. 13 examined P.W. 6. After completing the investigation, he filed the final report under Sec. 173(2) of the Code of Criminal Procedure against the accused on 13.2.1986 before the Judicial First Class Magistrate, Dharapuram for the alleged offences under Secs. 302 and 307, Indian Indian Penal Code. 4. On committal, learned Sessions Judge framed charges under Sec. 302, Indian Indian Penal Code (two counts) and 307, Indian Indian Penal Code. 5. The accused, when questioned as respects the charges so framed against him, denied the same and claimed to be tried. 6. The prosecution in proof of the charges framed, examined P.Ws. 1 to 13, filed Exs.P-1 to P-23 and marked M.Os. 1 to 30. 7. The accused, when questioned under Sec. 313, Code of Criminal Procedure, as respects the incriminating circumstances appearing in evidence against him, denied his complicity in the crime. He however, filed a written statement to the following effect: (a) A Division of garden land going by name Velanthottam belonging to the family had led to strained relationship between him and his brother Govindasami and as a consequence, the two families were not on talking terms for quite some time prior to the occurrence. The embittered relationship between the two families got further estranged on account of the inter-caste marriage of his son with dhobi girl Saroja. Ever since such marriage, his (accused’s) social status was considered low in profile by the family members of his brother. The embittered relationship between the two families got further estranged on account of the inter-caste marriage of his son with dhobi girl Saroja. Ever since such marriage, his (accused’s) social status was considered low in profile by the family members of his brother. (b) A few days prior to the occurrence, his dhobi daughter-in-law had been admitted in a Nursing Home at Dharapuram for delivery and she gave birth to a male child. That apart, his daughter had also been admitted in the very same Nursing Home for some ailment. On the afternoon of the date of occurrence, he returned to his house from the hospital for the purpose of taking clothes for his daughter and daughter-in-law admitted in the Nursing Home. While he was going to the Nursing Home, he passed through the lane situate just adjacent to the house of D- 1 and D-2. At that juncture, both D-1 and D-2 hurled wild abuses at him. The abuses so hurled in Tamil are to the following effect: 8. After hurling such abuses both D-1 and D-2 prevented him from proceeding further in the lane, claiming that he had no right to pass through the said lane. The accused proceeded further by pushing them aside. But D-1 and D-2 quite unexpectedly caught hold of his testicles and squeezed the same. The accused, in turn was stated to have taken a stone and hit with it against their heads. On receipt of the hits so aimed at them, their clutch got released and consequently, he escaped from their clutches. The squeezing of the testicles, however, resulted in swelling. (d) He was kept in illegal detention in the police station for about 5 to 6 days and treated for the injury he sustained and even after remand to judicial custody, he was treated. His younger son, who was suffering from the malady of madness, also died. Even subsequent to remand, he had taken treatment for the injury sustained by him to his testicles. The jail records, if called for, would prove the treatment taken by him in the hospital. Finally he would say that the entire occurrence took place as narrated by him and not in the way as narrated by the prosecution. 9. The accused, however, did not examine any witness on his side. 10. The jail records, if called for, would prove the treatment taken by him in the hospital. Finally he would say that the entire occurrence took place as narrated by him and not in the way as narrated by the prosecution. 9. The accused, however, did not examine any witness on his side. 10. Learned Sessions Judge, on a consideration of the materials placed and after hearing the arguments of the respective counsel rendered the verdict, as above. 11. Mr.K. Sengottaiyan, learned counsel appearing for the appellant/accused would press into service the lone and sole submission that the act of the accused in delivering the blows with a pestle on the heads of D-1 and D-2 resulting in their death on the spot, on the facts and in the circumstances of the case, would, by no stretch of imagination, be stated to be one done with the mens rea prescribed in any one of the four clauses of Sec. 300, Indian Indian Penal Code punishable under Sec. 302, Indian Indian Penal Code, and if at all it would be falling within the Exception I to Sec.300 punishable under Sec.304, Part I of the Indian Indian Penal Code to which course, Mr. Raghupathy learned Additional Public Prosecutor, representing the respondent-State, would of course strike a discordant note, though not very seriously. 12. Leave alone the concession sought to be so made as regards the overt act of the appellant-accused, it is not as if there are no materials sufficient and adequate enough to come to the conclusion that it was the hand of the appellant that was responsible for causing the death of D-1 and D-2, besides causing injury to P.W. 1. 13. As respects the occurrence, there is the testimony of ocular witnesses P.Ws. 1 to 3. P.W. 1 is none else than the daughter of the deceased Nachammal (D-1). At the time of the occurrence P.W. 1 and her sister Poonkodi (D-2) were alone present in the house. Her father Govindasami had gone to Dharapuram. Her other sister by name Balamani went to her work spot. Her brother Velusami also went to attend to the agricultural operations in the garden land possessed by the family. At the time of the occurrence P.W. 1 and her sister Poonkodi (D-2) were alone present in the house. Her father Govindasami had gone to Dharapuram. Her other sister by name Balamani went to her work spot. Her brother Velusami also went to attend to the agricultural operations in the garden land possessed by the family. It is only in such a situation, the accused during the course of a wordy altercation, with D-1 and D-2 was stated to have delivered the blows with the pestle M.O. 1 series on their heads leading to their death instantaneously, besides inflicting a hit with the same pestle on the head of P.W. 1 causing her a bleeding injury when she went to the rescue of D-2. The accused delivered blows on the head of D-1 in front of her house and in such process, when D-2 went to the rescue of her mother D-1 the accused delivered a blow with the same pestle on her head and she, in turn, on receipt of the said blow, ran towards the house or P.W. 2, being chased by the accused and in such process, she fell on the ground with her back facing the sky. The accused subsequent to her falling, inflicted some more blows on her head. When P.W. 1 went to the rescue of her sister, D-2, she was beaten on her head with the same pestle, which the accused was having in his hand causing a bleeding injury on her head and she also ran in a bid to save her life. This occurrence had been witnessed, apart from P.W. 1, by P.Ws. 2 and 3, the neighbours. The evidence of P.W. 2 would reveal that at the time when the occurrence took place she was sleeping in the pial of her house and on hearing the hue and cry emerging from the house of deceased 1 and 2, she woke up and had the fortuitous opportunity of witnessing the occurrence. Likewise, P.W.3 had the opportunity of witnessing the occurrence, when he was placing fodder to the cattle in the shed, situate adjacent to his house. The presence of P.Ws. 1 to 3 in the scene at or about the time of the occurrence, cannot at all be doubted. The reason is obvious. They are the natural witnesses. Likewise, P.W.3 had the opportunity of witnessing the occurrence, when he was placing fodder to the cattle in the shed, situate adjacent to his house. The presence of P.Ws. 1 to 3 in the scene at or about the time of the occurrence, cannot at all be doubted. The reason is obvious. They are the natural witnesses. It is not as if they have come to the scene place from elsewhere exactly at the time when the occurrence took place. This apart, P.Ws. 2 and 3 emerged from independent quarters and they have nothing to choose and prefer between D-1 and D-2 and the accused. 14. The evidence of P.Ws. 1 to 3 also gets the necessary corroborative support from the medical testimony available on record. The Doctor, P.W.4 who conducted the autopsy over the body of D-1 and issued Ex.P-3 post-mortem certificate, would opine that the injuries he found on the body of D-1 could have been caused by pestle like M.O. 1 series. Likewise, the Doctor, P.W. 5, who conducted the autopsy on the body of D-2 and issued Ex.P-4 post-mortem certificate also opined that the injuries found on the person of the body of D-2 could have been caused by assault with a pestle like M.O. 1 series. Even as respects the injuries sustained by P.W. 1 in the course of the occurrence the Doctor P.W. 6 who treated her and issued Ex.P-6 wound certificate would state that the injury he found on her person, could have been caused by assault with a pestle like M.O. 1 series. Thus, the medical testimony available on record serves as a lending assurance factor enhancing the credibility of the testimony of the ocular witnesses P.Ws. 1 to 3, when they say that D-1 and D-2, besides P.W. 1, were assaulted by the accused with a pestle like M.O. 1 series. 15. The weapon of offence is the pestle M.O. 1 series which was stained with blood of B group, as that of the blood group of D-1, as disclosed by the Serologist report Ex.P-17. The presence of B group blood in M.O. 1 series is a signal circumstance of the usage of the weapon in the commission of the crime, thereby corroborating the testimony of ocular witnesses P.Ws. The presence of B group blood in M.O. 1 series is a signal circumstance of the usage of the weapon in the commission of the crime, thereby corroborating the testimony of ocular witnesses P.Ws. 1 to 3, when they say that M.O. 1 series had been used in delivering the blows by the accused on D-1 and D-2 and P.W. 1. 16. The arrest, confession and the consequent recovery of M.Os. 9 and 10 effected pursuant to the confession made by the accused, also serves as an incriminating factor connecting the accused with the crime. The accused had been arrested by P.W. 13 in the presence of P.W. 8 at 3 p.m. on 10.12.1985 near Palladam Bus Stand. The accused, on interrogation, gave a voluntary confessional statement, the admissible portion of which is Ex.P-12. Pursuant to the said confession the clothes of the accused viz., M.Os. 9 and 10 were recovered at the instance of the accused. No tangible materials emerge, in the course of the cross-examination of P.Ws. 8 and 13, to point out that the arrest, confession and the consequent recovery, were a stage-managed one to suit the exigencies of the prosecution case. The clothes M.Os. 9 and 10 were found stained with human blood: but the result as respects the grouping the blood relatable to M.O. 10 was inconclusive. However, M.O. 9, was found to contain AB blood group which is the blood group of one of the deceased, viz., D-2, as disclosed by the serologist report, Ex.P-17. Thus, the presence and participation of the accused in the crime cannot at all. be doubted. 17. Thus, the various pieces of evidence, as discussed above point out in a clinching fashion that it was the hand of the accused that was responsible for causing injuries on the person of D-1 and D-2, resulting in their death instantaneously on the spot, besides causing a simple injury to P.W. 1. 18. The next question that crops up for consideration is, as to what is the offence that has been committed by the accused, on the facts and in the circumstances of the case. The answer to the question so posed, will be the answer to the submission made by learned counsel for the appellant. 18. The next question that crops up for consideration is, as to what is the offence that has been committed by the accused, on the facts and in the circumstances of the case. The answer to the question so posed, will be the answer to the submission made by learned counsel for the appellant. To recapitulate what all learned counsel for the appellant submitted that the act of the appellant/accused, insofar as relatable to D-1 and D-2, would be falling within Exception 1 to Sec. 300, Indian Indian Penal Code punishable under Sec. 304, Part I, Indian Indian Penal Code and not in any one of the four clauses of Sec. 300, I.P.C. punishable under Sec. 302, Indian Indian Penal Code. Learned counsel drew our attention to the trend of cross-examination made in the court below and the written statement filed by the accused, when he was examined under Sec. 313, Code of Criminal Procedure, in projection of his submissions. The questions put to the ocular witnesses particularly P.W. 1 during the course of cross-examination and the contents of the written statement filed by the accused, would reveal the alternative theory of the defence (1) by way of private defence of person, pure and simple, and (2) by way of grave and sudden provocation. Learned counsel for the appellant obviously understanding the hollowness of the defence of the right of private defence, pure and simple, did not press the same. However, the other defence, viz., grave and sudden provocation, which impelled the accused to rise in revolt, leading to the occurrence resulting in the death of D-1 and D-2, besides causing injury to P.W. 1, had been pressed with all seriousness. 19. However, the other defence, viz., grave and sudden provocation, which impelled the accused to rise in revolt, leading to the occurrence resulting in the death of D-1 and D-2, besides causing injury to P.W. 1, had been pressed with all seriousness. 19. The question is, as to whether the cause for the occurrence as stated by P.W. 1, is probable, or, whether the theory, as put forward by the defence in the course of cross-examination of the ocular witnesses, amplified by the written statement filed when questioned under Sec. 313, Code of Criminal Procedure, is probable, on the facts and in the circumstances of the case, if we do come to the conclusion that the reasons, as stated by P.W. 1 for the occurrence is probable, then it goes without saying that the theory of grave and sudden provocation, as projected by the defence, has to face a dismal failure, or, otherwise if the theory trotted out by the defence is more plausible and probable, in the circumstances of the case, then the case of the accused would definitely be covered by Exception I to Sec.300, punishable under Sec. 304, Part I, of the Indian Indian Penal Code. 20. It is the positive evidence of P.W. 1 that the accused did come to her house at about 4 p.m. on the day of occurrence by way of courtesy call with the avowed intention of making some sort of a present to the new born babe to Poonkodi (D-2). She would say that the accused enquired as to whether his wife made any courtesy call, when D-2 was in the hospital for delivery. The accused was made to understand that no such call was made by his wife. If that be the case, he would say, he would make some present to the new born babe. D-2 went inside the the house to bring the new born babe of hers, before ever the present was made by the accused. It is only at that juncture, the accused made a sarcastic comment that he was not interested in making any gift either to the new born babe or to her, that therefore, there was nonecessity for bringing the babe as he was interested only in his brother and that he had come there to make a present for the sake of his brother. On hearing the same, the D-2 remonstrated and told the accused that in such a contingency, it would be better for him to go and make the present to his brother. This sort of a reply was stated to have enraged the accused, who proclaimed that it would be better to do away with D-1 and D-2 inasmuch as they were responsible for bringing in fame to his family by arranging the marriage of the dhobi girl Saroja with his son Natarajan. It was only at that juncture, D-1, who went outside to fetch water, returned there with a plastic pot and she on hearing the same, told the accused that if he desired to do so, they could not stand in his way. Then only the accused was stated to have picked up the pestle M.O. 1 series which was lying in front of that house and initially attacked D-1 and subsequently, also attacked D-2 as well as P.W. 1. 21. The theory as projected by the defence was that a few days prior to the occurrence, her daughter had been admitted in a private Nursing Home for surgery in respect of a malady or ailment she was suffering in the very same hospital where D-2 was admitted for delivery. This apart, the dhobi daughter-in-law Saroja had also been admitted in the very same hospital for the purpose of delivery and she, in fact, gave birth to a male child. On the evening of the day of occurrence, the accused went to his house from the hospital for the purpose of procuring the necessary clothes for his daughter-in-law and daughter admitted in the Nursing Home. When he was going to the Nursing Home from his house, taking the clothes with him, along the lane situate on the west of the house of D-1 and D-2, both the deceased prevented him from proceeding further and also hurled wild accusations. The accusations so hurled were casting aspersions to his social status, besides being of a demeaning nature. Both the deceased were stated to have gesticulated and made remarks against the accused by stating that the person (accused) getting a heir apparent from a dhobi girl was coming. The accusations so hurled were casting aspersions to his social status, besides being of a demeaning nature. Both the deceased were stated to have gesticulated and made remarks against the accused by stating that the person (accused) getting a heir apparent from a dhobi girl was coming. They would further say that they had no objection for the using of the lane, in case he was prepared to come to their house to take their clothes for washing doing the job of a dhobi. Further, they also posed a question to the accused as to whether it was proper for a dhobi like him, who was in the habit of washing the clothes worn by women folk during menstrual period and also eating the food provided by such women-folk for washing the clothes, to use the pathway. It is only on hearing such accusations the accused was stated to have been deprived of his power of self-control by grave and sudden provocation and caused the death of D-1 and D-2 by delivering blows with a pestle M.O. 1 series, which was found available handy in front of that house, besides beating P.W. 1 and causing her a simple injury. This sort of the theory had of course been rejected by the ocular witnesses, particularly, P.W. 1, during the course of cross examination. Moot question it is to decide which version is more probable, on the facts and in the circumstances of the case. 22. It is at this juncture, we have to understand the concept of the definitions of ‘fact’, ‘evidence’, ‘proved’, ‘disproved’ and ‘not proved’ as defined by Sec. 3 of the Indian Evidence Act (Act 1 of 1872). ‘Fact’ means and includes- (1) anything, state of things, or relation of things capable of being perceived by the sense: (2) Any mental condition of which any person is conscious. ‘Evidence’ means and includes - (1) all statements which the court permits or required to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents produced for the inspection of the court; such documents are called documentary evidence. ‘Evidence’ means and includes - (1) all statements which the court permits or required to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents produced for the inspection of the court; such documents are called documentary evidence. ‘Proved’ - A fact is said to be proved when after considering the matters before it the court either believes it to exist, or, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists: ‘Disproved’ - A fact is said to be disproved when, after considering the matters before it, the court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. , ‘Not proved’-A fact is said not to be proved when it is neither proved nor disproved." 23. The word ‘evidence’ in the Act signifies only the instruments by means of which relevant facts are brought before court, viz., witnesses and documents and by means of which, the court is convinced on these facts. In judging whether a fact is or is not proved, the court is entitled to take into consideration not only the statements of witnesses but also the surrounding circumstances and probabilities of the case. Even if the statement of witnesses standing by themselves, are open to criticism, a fact may be held established on such evidence read in the light of the surrounding circumstances. The term ‘matters before it’ in the definition of the expression ‘proved’ includes ‘matters’, which do not fall within the definition of ‘evidence’, and such matters may include ‘inference from facts’. The proof of a fact depends not upon the accuracy of statements made at different stages of the case, but on the probability of its having existed. ‘Evidence of a fact’ and ‘proof of a fact’ are, therefore, different and distinct in the sense of they not being synonymous. It is the broad facts, made up of those fact of the case and not the little details that go to make up those facts that will make the extent of those facts probable or not. ‘Evidence of a fact’ and ‘proof of a fact’ are, therefore, different and distinct in the sense of they not being synonymous. It is the broad facts, made up of those fact of the case and not the little details that go to make up those facts that will make the extent of those facts probable or not. If a fact is to be held proved, the court must either believe it to exist or consider its existence so probable that a prudent man ought, under the circumstances, to act upon the suppositions that it had existed. Thus, it is crystal clear that the positive statements of witnesses is subject to the rule of probability or otherwise such statements of witnesses have to be excluded from the purview of consideration as being not proved. 24. In the case on hand, it is the positive statement of the ocular witness, viz., P.W. 1 that the igniting cause for the occurrence was in a particular way, as detailed above. The question is, as posed earlier, whether the same could have been probable on the facts and in the circumstances of the case. It is the admitted case of the prosecution that there was no love lost between the family of the accused, on the one hand, and that of D-1 and D-2 on the other, and the embittered relationship between the two families continued for two to three years, prior to the occurrence and both the family members were neither on talking terms, nor even used to call on the other by way of courtesy either on auspicious or inauspicious occasions. It is also admitted by P.W. 1 during the course of cross-examination that none of the family members of the accused called on her, when she was in the Nursing Home for the purpose of delivery either before or after the delivery. She would also make a candid admission that none of her family members also called on the daughter or daughter-in-law of the accused either. The cause for such embittered relationship between the two families was not only the partition dispute but also on account of the fact that the accused was entertaining a hallucination in his mind that it was D-1 and D-2 who were responsible for arranging the marriage of the dhobi girl Saroja with his son Natarajan, bringing in fame and disrepute to his family. In such a state of affairs, is it probable for the accused to have visited the house of D-1 and D-2 at or about the time of the occurrence with the avowed purpose of making a present to the new born babe to D-2? The answer to such a question in the circumstances of the case, we rather feel, cannot be anyone other than an emphatic ‘no’. 25. If we examine the defence theory it looks probable. It is the claim of P.W. 1 that the lane abutting her house on the west which runs north to south is a private lane belonging to her family and four other families, whose houses are situate abutting the lane. She would also assert such a claim during the course of her cross-examination. According to the defence, the accused was passing through the lane, taking the clothes to his daughter and daughter-in-law who were admitted in the hospital. He was at that time prevented by D-1 and D-2 and that apart, both of them hurled accusations against him, as detailed above. From a careful perusal of the accusations levelled against him, any one placed in such a situation, pretty certain it is, we feel, would have been deprived of the power of self-control by grave and sudden provocation and once the power of self-control is either lost or deprived of, it goes without saying, reasons never prevail and animal passion overwhelms and the person like the accused, in such a situation cannot be expected to see any rhyme or reason of what he was doing, by weighing his acts in golden scales. The act of the accused, placed in such a situation, in delivering blows by means of pestle like M.O. 1 series, on the heads of D-1 and D-2 besides causing injury to P.W. 1, cannot be stated to be anyone done with the requisite mens rea., taking his case within any one of the four clauses of Sec. 300, Indian Indian Penal Code, punishable under Sec. 302, Indian Indian Penal Code: and if at all his act is one that would fall under Exception I to Sec. 300, Indian Indian Penal Code, punishable under Sec. 304, Part I, Indian Indian Penal Code. In the view that we have taken the conviction and sentences awarded to the accused for the offence under Sec. 302, Indian Indian Penal Code (two counts) as had been done by the court below, are set aside. He is, however, found guilty under Sec. 304, Part I, Indian Indian Penal Code (two counts) and convicted thereunder. 26. The next question that arises for consideration is, what is the befitting and appropriate sentence that could be imposed to the appellant/accused in the circumstances of the case. A perusal of the statement of the accused under Sec. 313, Code of Criminal Procedure, reveals that he was aged 59 years on 6.3.1987. So, he is now 67 years old. It is also represented by learned counsel appearing for him that he came out on bail after serving approximately a period of three years. It is further represented by learned counsel for the appellant that his other son, Natarajan had also committed suicide. Taking all these factors into consideration we do not think it would be besides justice to impose a sentence of seven years rigorous imprisonment (two counts) for the conviction under Sec. 304, Part I, Indian Indian Penal Code and we accordingly impose the same. We however confirm the conviction and sentence imposed on him as not being harsh or excessive for the offence under Sec. 323, Indian Indian Penal Code. We also direct that the sentences are to run concurrently. 27. In fine, the appeal is allowed in part and the conviction and sentence are modified as above.