M. Karpagavinayagam, J.: For having murdered his wife by strangulation, Rajendran, the appellant herein, was convicted for the offence under Sec. 302, I.P.C. 2. The short facts leading to the conviction are as follows: "(a) The accused Rajendran was married to the deceased Krishnaveni on 11.9.1978. Even within three months after the marriage, the accused came to know that the character of the deceased was not good and he suspected her fidelity. However, at the intervention of the elders, matter was compromised, and they were living together at Kancheepuram in a separate house. Four children were born. (b) In April 1991, when the accused came back home, he saw one Balaraman coming out of his house. On coming to know that the deceased used to have illicit intimacy with Balaraman, the accused took out an arrival and attempted to attack Balaraman and the deceased. At that time, the deceased prevented the accused from attacking them by snatching away the weapon. The said Balaraman also requested to excuse him and went away. Thereafter, the accused came to know that the deceased used to have illicit intimacy with others also. Hence he used to take food only in the hotel, though he stayed in the house along with the children and the deceased. (c) Some days prior to the date of occurrence, he saw the deceased in the company of Raj, his friend and as soon as the said Raj saw the accused, he went away from the house. Next day, when Raj was questioned by the accused about having intimacy with his wife, the said Raj did not give proper reply. All these factors had caused mental worries to the accused. (d) The fateful occurrence took place on 4.4.1994. At about 11 a.m., the accused came to the house and on the Way, he happened to see that the deceased was taking tea in front of a bunk shop. Since the deceased noticed the accused coming home, she left the place and went home. The accused went inside the house and asked the deceased as to how she could have illicit intimacy with others, when he is maintaining the family by spending the amount and when there are four children born to them. The deceased without caring for his words, retorted stating that he had no business to question her. The accused went inside the house and asked the deceased as to how she could have illicit intimacy with others, when he is maintaining the family by spending the amount and when there are four children born to them. The deceased without caring for his words, retorted stating that he had no business to question her. On being provoked, the accused caught hold of the hands of the deceased with one hand and pressed her neck with another hand, as a result of which, the deceased died. On noticing that the deceased died at the spot, the accused went and surrendered before the police. (e) In the meantime, P.W. 1, the neighbour of the accused, was informed by his wife P.W. 2, that Krishnaveni, the deceased, was found lying down inside the house. P.W. 1 came to the house of the deceased and found her dead and therefore, he went to the police station at 1.30 p.m. and gave a complaint, Ex.P-2 to P.W. 13, Sub Inspect of Police. The case was registered and the FIR and a copy of the complaint were sent to the Judicial Magistrate and Superior Officers. (f) P.W. 14, the Inspector of Police, on the accused being surrendered before him and on receipt of the message that the case was already registered by P.W. 13, arrested the accused went to the spot and prepared the observation mahazar and the rough sketch. He conducted inquest between 3 p.m. and 6 p.m. on the same day. Ex.P-11 is the inquest report. Thereafter, he sent the dead body with a requisition to conduct postmortem. (g) The Doctor, examined as P.W. 9, after conducting post-mortem, issued post-mortem certificate, marked as Ex.P-7 and opined that the deceased appeared to have died of asphyxia due to strangulation. (h) Meanwhile, the accused was produced before the Judicial Magistrate with a request, marked as Ex.P-12 to record his judicial confession. P.W. 8, the Judicial Magistrate, on receipt of the order from the Chief Judicial Magistrate, marked as Ex.P-3, on 6.4.1994, recorded the confession of the accused, Ex.P-5, after observing the formalities. (i) P.W. 14, the Inspector of Police, after finishing investigation, filed the charge sheet against the accused for the offence punishable under Sec. 302, I.P.C." 3. During the course of trial, P.Ws. 1 to 14 were examined, Exs.P-1 to P-12 were filed and M.O. 1 was marked. 4. (i) P.W. 14, the Inspector of Police, after finishing investigation, filed the charge sheet against the accused for the offence punishable under Sec. 302, I.P.C." 3. During the course of trial, P.Ws. 1 to 14 were examined, Exs.P-1 to P-12 were filed and M.O. 1 was marked. 4. The accused, when questioned under Sec. 313, Crl.P.C. denied having committed the offence and stated that when he was in the house, police came and took him to police station and on their record, the trial Court convicted the accused for the offence under Sec. 302, I.P.C. and sentenced him thereunder. 6. Assailing the same, Mr. Esaiah, learned counsel for the appellant in this appeal, would contend that the materials placed before the trial Court would not be sufficient to hold that the accused committed the murder and as such, he is entitled to acquittal and at any rate, even assuming that the available materials are accepted to be true, the accused can be convicted only for the offence under Sec. 304(II), I.P.C., as the act had been committed by the accused due to sustained and sudden provocation. 7. We have heard the learned Additional Public Prosecutor on this aspect. We have also gone through the records. 8. On going through the entire records, it is clear that there is no direct evidence with reference to the murder committed by the accused. As a matter of fact, almost all the witnesses, viz., P.W. 1, P.W. 3, P.W. 4, P.W. 5, P.W. 6 and P.W. 7 turned hostile. 9. According to the prosecution, P.W. 1 is the person who gave the complaint to the police. However, the evidence of P.W. 2, the neighbour, would indicate that during the time of occurrence, both the accused and the deceased were found inside the house. Apart from his evidence, no other material had been placed by the neighbours of the accused. As it is, there is no direct evidence for the commission of murder. 10. However, it is noticed that the accused, immediately after the commission of crime causing death of the deceased, straightaway went to the police station and surrendered before P.W. 14 on 4.4.1994 at about 1.30 p.m. The accused was produced before the Magistrate. P.W. 14 took immediate steps to arrange for recording the confession by the accused before the Magistrate through requisition. Accordingly, the Chief Judicial Magistrate, ordered for the same. P.W. 14 took immediate steps to arrange for recording the confession by the accused before the Magistrate through requisition. Accordingly, the Chief Judicial Magistrate, ordered for the same. The order was received by P.W. 8, Judicial Magistrate on 6.14.1994. In pursuance of the order, the accused was directed to be produced on 7.4.1994. After putting preliminary questions, he was asked to be detained in a separate cell and to be produced before him next day. Accordingly, on 8.4.1994, he was produced before P.W. 8, the Magistrate, to whom he gave complete details of the occurrence. The said confession is marked as Ex.P-5. 11. In Ex.P-5, the accused had clearly stated that the deceased had illicit intimacy with one Balaraman in the year 1991 and thereafter, few days prior to the date of occurrence, she had affair with one Raj, who is the friend of the accused. Ex.P-5 covering about eight pages would clearly indicate that the accused was bearing all sorts of insult due to the conduct of the deceased, who had illicit intimacy with several persons and on the date of occurrence, when the accused questioned the act of the deceased, the deceased retaliated saying that he had no business to question her, which provoked him to press her neck with one hand, resulting in her death. 12. The evidence of P.W. 2, which speaks about the accused last seen in the company of the deceased and the evidence of P.W. 8, which speaks about the voluntary confession. Ex.P-5, given by the accused and the medical evidence rendered by P.W. 9 through Post Mortem Certificate, Ex.P-7, would clearly show that the deceased died only due to strangulation at the hands of the accused. 13. The question remains to be considered, as pointed out by Mr. Esaiah, learned counsel for the appellant, is whether these materials would make out a case for the offence under Sec. 302, I.P.C. 14. On hearing the learned counsel for the appellant and the learned, Additional Public Prosecutor, we are of the considered view that even assuming the case of the prosecution in entirety is true, the case would not fall under Sec. 302, I.P.C., in view of the fact that the occurrence had taken place due to the sustained and sudden provocation, which would bring the case under Sec. 304(II), I.P.C. 15. Therefore, the conviction and sentence imposed upon the appellant under Sec. 302, I.P.C., are set aside and instead, he is convicted for the offence under Sec. 304(II), I.P.C. and sentenced to undergo rigorous imprisonment for five years. If the appellant has completed five years of imprisonment, he shall be directed to be set at liberty, if he is not required in any other case. 16. Thus, the appeal is dismissed with the above modifications. Consequently, Crl.M.P. No. 10207 of 2002 is also dismissed.