Judgment :- The accused in Sessions case No.98 of 98 on the file of the Additional Sessions Judge, Dindigul is the appellant in the above appeal. He was charged under Section 302 I.P.C. for stabbing one Murugan on 9-6-97 at about 5 P.M. 2. The case of the prosecution is briefly stated hereunder: The marriage between P.W.1 Kaliammal and the accused Kaliappan took place eight years back and there after they were living at Ulliakottai village. One month after the marriage, since there was a mis-understanding between themselves and the husband Kaliappan suspected the conduct of his wife-P.W.1, she left the company of her husband and living with her parents. At that time, that is on 9-6-97 at about 5 P.M. the accused went there and requested his wife Kaliammal to return to his matrimonial home. She refused to accede to his request in returning to his house. At that time one Murugan, her brother who was there, told him that when his sister did not like to come to him, why he (accused) quarreled with her. It is also the further case of the prosecution that the accused got provoked by the reply of the said Murugan, took a knife and stabbed the said Murugan on his chest and sped away from that spot. With regard to the charge, the prosecution examined 12 witnesses as P.Ws.1 to 12 and marked 16 documents as Exs. P-1 to P-16 and M.Os.1 to 4 in support of their case. On the side of the accused, no one was examined. On consideration of the entire materials, the learned Sessions Judge, after holding that the prosecution failed to establish the charge under Section 302 I.P.C. and they established the charge only under Section 304 (part 1) I.P.C., convicted thereunder and sentenced him to undergo Rigorous Imprisonment for 10 years. Against the said conviction and sentence, the accused has preferred the present appeal. 3. Heard the learned counsel for the appellant as well as learned Government Advocate for the State. 4. The point for consideration in this appeal is whether the prosecution has established their case and the conviction and sentence imposed on the accused by the learned Sessions Judge is sustainable? 5. Learned counsel for the appellant, after taking me through the entire materials, would contend that it is not safe to convict the accused merely on the evidence of P.W.1. 5. Learned counsel for the appellant, after taking me through the entire materials, would contend that it is not safe to convict the accused merely on the evidence of P.W.1. He further contended that though according to the prosecution, knife-M.O.1 was recovered on the basis of the statement of the accused, the same has not been sent to the Forensic Science Laboratory for examination. He further contended that except the dress said to have been worn by the accused, no other material like blood-stained earth, etc., were recovered and marked as a Material Object by the police. On the other hand, learned Government Advocate, while supporting the conclusion arrived by the learned Sessions Judge, would contend that as the evidence of P.W.1 is cogent, believable and acceptable, the learned Sessions Judge rightly accepted the same and convicted the accused. He further contended that in the absence of any motive against the wife of the accused and in the absence of examination of Mahamuni who is alleged to have got intimacy with P.W.1, the conclusion of the learned Sessions Judge cannot be assailed. Inasmuch as at the time of the occurrence there was drizzling and because of the said reason, the blood-stained earth was not taken and sent for examination. On the other hand, according to him, the prosecution has established their case by placing acceptable oral and documentary evidence. 6. I have carefully considered the rival submissions. 7. The wife of the accused Kaliammal was examined as P.W.1. According to her, she married the accused 8 years back as second wife and within a period of one month because of the conduct of her husband suspecting her with one Mahamuni, she left his company and was living with her parents. She further deposed that while so, on 9-6-97, when she was at Kachanaicker Thottam, the accused came there and requested her to come and join with him. It is also seen from her evidence that the accused made such a statement in the presence of her brother Murugan. She further deposed that since she refused to accede to his request and since the accused was insisting, at that stage the deceased, her brother interfered and questioned the conduct of the accused in insisting her sister. It is also seen from her evidence that the accused made such a statement in the presence of her brother Murugan. She further deposed that since she refused to accede to his request and since the accused was insisting, at that stage the deceased, her brother interfered and questioned the conduct of the accused in insisting her sister. At that time, it is stated by P.W.1 that the accused took a knife and suddenly stabbed Murugan on his chest and sped away from the spot. The occurrence took place at 5 P.M. on 9-6-97. Apart from the evidence of P.W.1, her mother namely Pappa was examined as P.W.2. She deposed that on the said date around 5 P.M. while P.W.1 and her brother Murugan were in their field, the accused came and requested P.W.1 to return back to his home. Even though the prosecution has examined P.W.2 to speak about the occurrence, even in chief examination she deposed that on seeing the accused i.e., her son-in-law, she went inside the house. In such a circumstance, as rightly observed by the learned Sessions Judge, her evidence is not helpful to the prosecution case. Accordingly, the only witness who witnessed the occurrence is P.W.1. 8. On the side of the defence it was pleaded that it was Mahamuni who is alleged to have got intimacy with P.W.1, came and stabbed Murugan and sped away from the spot. In the absence of examination of the said Mahamuni, the theory of the said defence cannot be accepted. On the other hand, the evidence of P.W.1 is believable, cogent and acceptable. It was she who made a complaint-Ex.P-1. The contents of Ex.P-1 and the statement of P.W.1 before the Court are one and the same. In other words, there is no contradiction between Ex.P-1 complaint and the evidence of P.W.1 regarding the manner of the incident. As rightly argued by the learned Government Advocate, absolutely there is no motive on the part of the wife. I have already referred to the fact that though it is stated that P.W.1 was having intimacy with the said Mahamuni, the latter has not been examined. 9. The other relevant circumstance to be seen is the evidence of the Doctor who has been examined as P.W.7. It was he who received the injured Murugan at about 6.45 P.M. On examination he found that he (Murugan) was brought dead. 9. The other relevant circumstance to be seen is the evidence of the Doctor who has been examined as P.W.7. It was he who received the injured Murugan at about 6.45 P.M. On examination he found that he (Murugan) was brought dead. On examination, he noticed an injury 7 x 3 c.m. on the left side upper part of the stomach and below the chest. He admitted that he has not measured the depth of the injury. However, he noted the injuries in his report in the accident register which has been marked as Ex.P-9. It is also relevant to refer the evidence of P.W.5 who conducted the Post-mortem on the body of the deceased Murugan. On examination, he found the following injuries: The post-mortem certificate has been marked as Ex.P-4. He further deposed before the Court that the injuries could have been caused by using M.O.1 knife. The evidence of P.W.5, and P.W.7 would show that the deceased Murugan died due to the injuries as explained by them. I have already referred to the complaint-Ex.P-1 and the evidence of P.W.1. All the above materials clearly prove the case of the prosecution. 10. It is true that though the knife has been recovered at the instance of the accused in the presence of 2 witnesses, the same has not been sent to forensic science laboratory for examination. It is true that though the other material objects, namely, M.O.2-Dhothi, M.O.3- towel, M.O.4-underwear were sent for forensic examination, M.O.1 knife has not been sent for examination. By pointing out the above aspect, learned counsel for the appellant would contend that in such a circumstance, in the absence of any proof or evidence that the very same knife has been used for the commission of the offence, the prosecution case has to be rejected. I am unable to accept the said contention for the following reasons. P.W.1 deposed in chief examination that there was drizzling. She has stated that, Even P.W.2 has deposed the same version. Apart from these statements, P.w.12-Inspector of Police in his chief examination has stated that, It is also to be noted that on the basis of the statement of the accused, M.O.1-knife was recovered in the presence of two independent witnesses, namely, Kuzhanthaivel and Sukumar. Though the said Sukumar was not examined, the other witness namely Kuzhanthaivel has been examined as P.W.9. Though the said Sukumar was not examined, the other witness namely Kuzhanthaivel has been examined as P.W.9. The admissible portion in the confessional statement of the accused is Ex.P-12. P.W.9 has also identified the knife-M.O.1. In such a circumstance, though M.O.1 has not been sent for forensic science laboratory for examination, that itself is not a ground to reject the case of the prosecution. 11. Even according to P.W.1, the accused came to Kachanaicken Thottam and requested her wife-P.W.1 to join with him. There is no evidence to show that the accused went there with an intention to kill the deceased Murugan. No doubt, because of the interference by the deceased Murugan, the accused in sudden provocation stabbed him with M.O.1 on his chest and sped away from the scene of occurrence. The materials placed on the side of the prosecution, the circumstances and probabilities would go to show that even the conclusion of the learned Sessions Judge convicting him under Section 304 (1) I.P.C. cannot be sustained. At the most, in the light of the fact that he stabbed him (Murugan) on the vital part of the body, namely, chest by using M.O.1 knife, I am of the view that Section 304 (part 2) I.P.C. alone attracts and not Section 304(part 1) I.P.C. as concluded by the learned Sessions Judge. 12. In the light of what is stated above, while setting aside the conviction and sentence passed by the Sessions Judge under Section 304 (i) I.P.C., and 10 years Rigorous Imprisonment, I convict the accused/appellant under Section 304 (ii) I.P.C., and sentence him to undergo Rigorous Imprisonment for 5 (Five) years. With the above modification, the Criminal Appeal is allowed in part.