Judgment :- (This Criminal Appeal has been preferred against the judgment and conviction passed by the Learned Principal Sessions Judge, Pudukottai in S.C.No.85 of 2001, dated 26.3.2002.) S. Ashok Kumar, J. The appellant is the sole accused in S.C.No.85 of 2001, on the file of the Principal Sessions Judge, Pudukottai and was convicted for an offence under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5000/=, in default to undergo rigorous imprisonment for one year. Aggrieved over the said judgment and conviction, this Appeal has been preferred. 2. The brief facts of the prosecution case is as follows: - The deceased Rajangam @ Nagaraj and accused belong to Killukulavaipatty Village. P.W.1 Ponnalagu is the wife of the deceased and P.W.2 Pounraj is their son. The occurrence said to have taken place on 16.5.2001 at 12.00 p.m., midnight. Earlier, there were frequent quarrels between the deceased and the accused since the cattle of the accused Vellaisamy used to graze in the haystack of the deceased, adjacent to his house. Five motnhs prior to the date of occurrence, there was a quarrel between the accused and the deceased who grappled together and the accused threatened to kill the deceased at any time. On 16.5.2001, at 12.00 pm., mid night, P.W.1, P.W.2 and two daughters of the deceased were lying in front of the house and since there was likelihood of rainfall with wind, P.W.1 and her two daughters went to sleep inside their house with doors open. The deceased was lying in a mat adjacent to his Son P.W.2, Pounraj, who was sleeping on the other mat in front of their house. At that time, P.W.1 heard the alarming voice of the deceased and her son, P.W.2. She got up from the bed and saw her husband being assaulted by the accused, Vellaisamy on his neck by Aruval, M.O.7. She could see the occurrence from the light emanated from the electric light at the electrical post at the place of occurrence. P.W.1 and P.W.2 chased the accused, who ran with the Aruval from the place of occurrence and P.W.4, Shanmugham, the brother of the deceased, got up from his bed after hearing their screaming voice and he also chased the accused along with P.Ws 1 and 2 and they could not catch the accused Vellaisamy. P.W.1 and P.W.2 chased the accused, who ran with the Aruval from the place of occurrence and P.W.4, Shanmugham, the brother of the deceased, got up from his bed after hearing their screaming voice and he also chased the accused along with P.Ws 1 and 2 and they could not catch the accused Vellaisamy. The occurrence took place in a remote village in the mid night and as there was no transport facility, P.Ws 1 to 4 went to the Police Station at Udayalipatti on 17.5.2001 at 7.15 a.m., and P.W.1 lodged the Ex.P.1complaint to P.W.9, Sub Inspector of Police, who registered the FIR Ex.P.10, in Crime No.50/2001, for an offence U/s. 302 IPC The original of the FIR was sent to the Judicial Magistrate, Keeranur, copies were sent to the Inspector of Police, Keeranur and higher officials through Muthukumar, Police Constable. On receipt of the copy of FIR, P.W.10, Murugan, Inspector of Police, Keeranur, visited the place of occurrence on 17.5.2001 at 8.00 a.m., and prepared an observation mahazar in Ex.p.3, rough plan Ex.P.11. He also recovered blood stained mat, M.O.1, mat M.O.2, blood stained Banian, M.O.5, blood stained Salvai, M.O.4, Blood stained mud, M.O.5, ordinary mud, M.O.6 under a cover of mahazar in Ex.P.4 in the presence of P.W.6, Mudiyappan, Village Administrative Officer and one Koothiayan. He also arranged P.W.7 to take photographs under Ex.P.7 and 8 series of the deceased body of Rajangam. He examined P.Ws.1, 2 and 7 and recorded their statements and conducted an inquest over the body of the deceased and prepared inquest report, Ex.P.12. Afterwards, he sent the body of the deceased to the Government Hospital, Keeranur for postmortem. 3. P.W.3 Dr.Anbanandan, Civil Surgeon of Government Hospital, Keeranur received the requisition from the Inspector of Police and conducted an autopsy over the body of the deceased at 3.00 pm., on the same day. He found the following injuries: - "1. A deep cut injury over the right side of the neck upto the cervical bone. Complete cut cervical bone. Complete cut of neck. 2. A deep lacerated cut injury over the right shoulder size 10 x 10 cm., Muscles laceratd skin with muscles expelled. 3. Deep cut injury of bout 15 x 10 x 10 cm over the left shoulder muscles expelled. Head-normal. On opening head, Brain matter-normal. Eyelids closed. Mouth and lips partially opened. Tongue inside. Jaws clenched. Tooth complete. Ear-normal. Nose-normal. 2. A deep lacerated cut injury over the right shoulder size 10 x 10 cm., Muscles laceratd skin with muscles expelled. 3. Deep cut injury of bout 15 x 10 x 10 cm over the left shoulder muscles expelled. Head-normal. On opening head, Brain matter-normal. Eyelids closed. Mouth and lips partially opened. Tongue inside. Jaws clenched. Tooth complete. Ear-normal. Nose-normal. Neck-complete cut cervical bone." 4. The Doctor also gave the opinion that the deceased would appear to have died due to complete cut of the neck, shock and haemorrhage. Ex.P.2 is the postmortem certificate issued by the Doctor. 5. Continuing his investigation, the Inspector of Police examined P.Ws.5 & 6 and recorded their statements. On 17.5.2001 at 5.00 pm., at Kanampatty Junction road he arrested the accused Vellaisamy and recorded his confessional statement, admissible portion of which is Ex.P.5. In pursuance of his confessional statement, the accused produced M.O.7, Aruval from a thorny bush near a quarry at Koppampatty village, which was seized under a cover of mahazar Ex.P.6, in the presence of the witnesses P.W.6 Mudiyappan and Kothaiah. Thereafter the accused was remanded to judicial custody. Thereafter the material objects were sent to Judicial Magistrate Court, Keeranur for being transmitted to Forensic Laboratory and for Chemical analysation. The Chemical report Ex.P.16. And the Serologist Report in Ex.P.17 were received by the court. After completing the investigation: P.W.10 filed the final report against the accused for an altered section 302 IPC on 31.5.2001. 6. Before the Sessions Court, Pudukottai, on behalf of the prosecution P.Ws.1 to 12 were examined and Exs.P.1 to 17 and M.Os.1 to 11 were marked. On behalf of the accused no witness was examined and no document was produced. When the accused was questioned under Section 313 Cr.P.C., with regard to the incriminating circumstances appearing as against him in the evidence of the prosecution witnesses, the accused denied the same as false and not known. 7. On a consideration of the oral and documentary evidence, the leaned Principal Sessions Judge, Pudukottai held that the charge framed against the accused has been proved and punished him for offence under Section 302 IPC to undergo Rigorous Imprisonment for life and to pay a fine of Rs.5000/= in default to undergo Rigorous Imprisonment for one year. 8. 7. On a consideration of the oral and documentary evidence, the leaned Principal Sessions Judge, Pudukottai held that the charge framed against the accused has been proved and punished him for offence under Section 302 IPC to undergo Rigorous Imprisonment for life and to pay a fine of Rs.5000/= in default to undergo Rigorous Imprisonment for one year. 8. Before this court, the learned counsel appearing for the appellant would contend that P.Ws 1 and 2 could not be the eyewitnesses and they have been arrayed as eyewitnesses falsely. At any event even if this court holds that it is this accused who caused the injury which was the cause of death of the deceased, the accused was suffering from a sustained provocation as seen from his confessional statement and therefore at the worst, the accused could be convicted only for an offence U/s.304 (i) IPC and not for an offence U/s.302 IPC. Per contra, the learned Additional Public Prosecutor would contend that the nature of injury caused on the deceased would show that the neck of the deceased was severed by the accused resulting in the instantaneous death and the reasons for sustained provocation are not sufficient to warrant such an inference in favour of the accused. 9. P.W.1 and P.W.2 are the wife and son of the deceased. P.W.4 is the brother of the deceased. The motive for the occurrence is said to be that the cattle of the deceased often grazed in the haystack of the accused and there were frequent quarrels. The occurrence is said to have taken place on 16.5.2001. About 5 months prior to the occurrence, on the Pongal day, the cattle of the accused grazed the haystack of the deceased, which was near the house of the deceased. When P.W.1 questioned the same, the accused has scolded P.W.1 and thereafter a quarrel ensued between the deceased and the accused, in which the accused is said to have assaulted the deceased with a stick on his head. When both of them grappled each other, the deceased is said to have bitten the nose of the accused. At that time, the accused has threatened the deceased that he would kill him at any time. This motive is spoken to by P.W.1, P.W.2 and also by P.W.5. When both of them grappled each other, the deceased is said to have bitten the nose of the accused. At that time, the accused has threatened the deceased that he would kill him at any time. This motive is spoken to by P.W.1, P.W.2 and also by P.W.5. P.W.5 is an independent witness who has intervened in the quarrel held on the Pongal day and prevented both the parties from going to Police Station for lodging complaints. This motive is not specifically denied on behalf of the accused also. 10. Though P.W.4, is the brother of the deceased and claims to have chased the accused along with P.Ws 1 and 2, P.W.4 might not have seen the accused cutting the deceased on his neck with a dangerous weapon, M.O.7. Only after the alarm raised by P.W.1 and P.W.2, he has got up and followed P.Ws 1 and 2, who were chasing the accused. But the evidence of P.Ws 1 and 2, the wife and son of the deceased are natural. Both P.Ws.1 and 2 have given a cogent version as to how the occurrence took place and how they chased the accused from some distance by raising alarms. 11. The learned counsel for the appellant would contend that though P.Ws 1 and 2 are wife and son of the deceased and they were very much present in the scene of occurrence and were lying near the deceased, the absence of blood stain on their dresses would show that they were not present near the deceased at the time of occurrence would and they might have gone to attend a village festival in a nearby village and they have falsely claimed as eye witnesses. A perusal of the photographs would show that the neck is totally severed. From the Photographs we can see that the western side of the mat in which the deceased was lying there was another mat in a distance of one foot. The entire blood from the neck of the deceased has gone towards the eastern side of the mat in which the deceased was lying and no blood could be seen on the western side of the body of the deceased. Apart from the blood stained mat where the body of the deceased was found, within one-foot distance on the western side, there was another mat, which was found empty. Apart from the blood stained mat where the body of the deceased was found, within one-foot distance on the western side, there was another mat, which was found empty. This would clearly show that at the time of occurrence, another person was sleeping in the mat on the western side of the blood stained mat. According to P.W.1 and P.W.2, P.W.1 wife of the deceased was sleeping inside the house by keeping the door open along with her two daughters and P.W.2, was sleeping with his father, the deceased adjacent to his mat. Therefore, this contention of the leaned counsel for the appellant that absence of blood stains on the cloths of PWs 1 and 2 will raise the presumption that they were not occurrence witnesses could not be sustained. 12. Learned counsel for the appellant pressed into service the judgment of the Supreme Court in Mehraj Singh Vs. State of U.P. With Kalu Vs. State of U.P. And others, reported in 1994 SCC (Cri) 1390, wherein their Lordships held that absence of bloodstains on the clothes of the widow of the deceased who claimed to be present with her husband at the time of occurrence, in the circumstances of the said case, it could be inferred that she was not present at the scene of occurrence. But the facts of the said case are totally different from the facts of this case. In the said case relied on by the learned counsel for the appellant, there was absence of bloodstains even at the place of occurrence and there was absence of blood trail from the place of occurrence to the place where the dead body was found which led to the conclusion that the occurrence did not take place in the manner suggested by the prosecution. That was a case in which the FIR was lodged after a long delay and the FIR was ante timed and therefore, the Supreme Court did not accept the prosecution case. But, this is a case in which there is no dispute with regard to the place of occurrence. There is no contention that the FIR was ante timed or there was a delay in lodging the FIR. But, this is a case in which there is no dispute with regard to the place of occurrence. There is no contention that the FIR was ante timed or there was a delay in lodging the FIR. Therefore, the contention of the learned counsel that P.Ws 1 and 2 could not be occurrence witnesses because of the absence of bloodstains in their clothes is not sustainable and such inference is not possible in this case. Though the occurrence took place in the midnight in a remote vilage, FIR has been lodged on the next day 17.5.2001 at 7.15 a.m., at Udayalipatti Police Station. There is no dispute that there is no transport facility after midnight from the place of occurrence to Udayalaipatti, where the Police Station is situate. Further, there is no contention that there is any delay in the FIR reaching the court. In the FIR itself, P.W.1, wife of the deceased has narrated the motive, as well as the way in which the occurrence took place. There is no reason to suspect the evidence of P.Ws1 and 2. 13. Apart from the ocular evidence of PW.1 and PW.2 another important evidence on the side of the prosecution is that the accused was arrested on 17.5.2001, the very next day at 5.00 p.m., at Kanampatti Junction Road and he volunteered to give a confession, admissible portion of which is Ex.P.5. In pursuance of the said confession, the accused has produced MO.7, Aruval from a Velikaruvai bush, near a quarry at Koppampatty village, which was seized under a cover of Mahazar Ex.P.6 in the presence of Mudiyappan, P.W.6 and one Koothaiah. When the said Aruval, M.O.7 was sent for chemical analysis with a requisition by the Judicial Magistrate, Keeranur along with the other bloodstained material objects to the Forensic Laborotary, after chemical and biological analysation it was detected M.O.3, Banian of the deceased, M.O.4, Shawl used by the deceased, M.O.8, Dhoti of the deceased, M.O.10, Belt of the deceased and M.O.7, the billhook (Aruval) used by the accused contained human blood belonging to "O" group. M.O.1 mat also contained human blood. Thus the matching of blood group of the deceased in M.O.7, Billhook, recovered after the arrest of the accused with the clothes of the deceased is another important circumstance which lends support to the prosecution case. 14. M.O.1 mat also contained human blood. Thus the matching of blood group of the deceased in M.O.7, Billhook, recovered after the arrest of the accused with the clothes of the deceased is another important circumstance which lends support to the prosecution case. 14. The learned counsel for the appellant would further contend that even if the evidence available on record with the prosecution is sufficient to prove the participation of the accused in the crime, still, the accused was labouring under a sustained provocation, which would have been the reason for the incident. In a confession statement volunteered by the accused, that portion of the statement which leads to the recovery of a weapon or material object concerned with the crime alone is admissible under section 27 of the Evidence Act. Even though the entire confession is inadmissible under section 25 of the Evidence Act, but the settled law is that an admission made by the accused in the confession statement could be used in his favour as an extenuating circumstance. 15. In Thandavan In re., reported in 1972 L.W.(Criminal), P.244, a Division Bench of this Court has held as follows:- "In this connection reference was made to Mottai Thevan V. State (1951 MWN Cr.274). There, Somasundaram,J., after referring to S.25 of the Indian Evidence Act observed as follows:- "S.25 of the Indian Evidence Act says that "no confession made to a police officer shall be proved as against a person accused, of any offence" I underline the word against; the Section does not therefrom prohibit the use of it in favour of the accused. In the majority of cases, the confessions are sought to be used only against the accused. The cases in which such confessions would or can be used in favour of the accused will be very few and they will be the exception to the general rules." 16. In this case in the confession recorded on 17.5.2001, the accused has stated as follows:- ...."bts;isf;fy;gl;oapypUe;J eh';fs; bjk;kht{Uf;F rhkp Fk;gpl te;J rhkp Fk;gpl;Lk; gpd; vdJ khkpahh; tPl;ow;F brd;Wk; 15.5.2001 Mk; njjp kjpak; vdJ kidtp kw;Wk; FHe;ija[ld; irf;fpfspy; fps;Sf;Fstha;g;gl;o nehf;fp te;njd;. tUk; tHpapy; vdJ kidtp ehd; Cupy; ,;y;yhj rkak; nkw;go ,uh$h;'fk; kw;Wk; mtuJ kidtp bghd;dHF jd;dplk; mof;fo jfuhW bra;J nftykhfj; jpl;Ltjhfg; g[fhh; bra;jhh;. mijf; nfl;lt[ld; vd; kdjpy; ,Ue;j tpnuhjk; mjpfkhfp mtd; capnuhL ,Ue;jhy;jhnd bjhy;iy jUthd; mtid vg;goa[k; bfhiy bra;nj jPu ntz;Lk; vd;W rhpahd neuk; ghh;j;Jf; bfhz;oUe;njd;...." 17. tUk; tHpapy; vdJ kidtp ehd; Cupy; ,;y;yhj rkak; nkw;go ,uh$h;'fk; kw;Wk; mtuJ kidtp bghd;dHF jd;dplk; mof;fo jfuhW bra;J nftykhfj; jpl;Ltjhfg; g[fhh; bra;jhh;. mijf; nfl;lt[ld; vd; kdjpy; ,Ue;j tpnuhjk; mjpfkhfp mtd; capnuhL ,Ue;jhy;jhnd bjhy;iy jUthd; mtid vg;goa[k; bfhiy bra;nj jPu ntz;Lk; vd;W rhpahd neuk; ghh;j;Jf; bfhz;oUe;njd;...." 17. Relying upon the said statement of the accused the learned counsel for the appellant would contend that there was already enmity between the deceased and the accused, as admitted by the prosecution, there was a quarrel on the Pongal day about 5 months earlier to the occurrence in which both of them assaulted each other and one day prior to the occurrence i.e., on 15.5.2001, when the accused was coming with his wife with his child in a cycle, he wife has complained that the deceased and his wife were very often abusing her in the absence of the accused, her husband, and on hearing this, the accused was enraged to commit the murder. The mere complaining of abuse by the wife of the accused cannot be taken as a sufficient ground for a sudden provocation or sustained provocation. 18. If a person was having an illegal affair with the wife of the accused or vice versa and in spite of the warning the affair continues, then there may be a sustained provocation on the part of the accused to do away with the opposite party. There are cases of this nature in which the theory of sustained provocation has been upheld. But, on a mere complaint by the wife of the accused that the deceased and his wife abused her because the cattle of the accused grazed in the haystack of the deceased, such kind of complaint by the wife of the accused cannot be said to be a sufficient cause for provocation, much less, sustained provocation to commit the grave offence, like murder. If such kind of complaint by wife of the accused is held to be sufficient cause for a sustained provocation to commit the grave crime, then there will be no end and every accused will try to exculpate the serious crime by giving such an explanation in the confession statement. If such kind of complaint by wife of the accused is held to be sufficient cause for a sustained provocation to commit the grave crime, then there will be no end and every accused will try to exculpate the serious crime by giving such an explanation in the confession statement. Whether a reasonable person in a circumstance of the particular case, committed the offence under provocation which was grave and sudden or it was a sustained provocation is a question of fact to be decided in the particular circumstance of each case. As far as this case is concerned, the occurrence has not taken place without premeditation in a sudden fight or in a heat of passion upon a sudden quarrel. Sub Section (4) of Section 300 is not applicable when the accused has caused the death in a cruel manner as has been held by the Supreme Court in AIR 1996 SC 2590 . As far as this case is concerned there had been frequent quarrels between the accused and the deceased prior to the occurrence and 5 months earlier to the occurrence, they have grappled each other and assaulted each other and mere complaint of the wife of the accused that in his absence, the deceased and his wife abused her for her cattle grazing in their haystack cannot be the cause for committing the murder on the next day mid night. The occurrence has been committed in a gruesome manner at a calculated time by the accused. The way in which the murder has been committed will be presumed by seeing the photographs. The accused has caused a deep-cut injury, which severed the neck of the deceased, causing instantaneous death. We do not find any reason to come to the conclusion that the offence committed by the accused will not attract 302 IPC, but will attract only 304 IPC. Therefore, we do not want to interfere with the conviction and sentence imposed on the accused by the learned Principal Sessions Judge. Accordingly, the Appeal is liable to be dismissed, and the same is hereby dismissed.