Judgment : Per M. JEYAPAUL, J. 1. The accused who suffered a judgment of conviction and sentence to undergo life imprisonment for the offence under Section 302 of the I.P.C., moves the present appeal. 2. The learned Principal Sessions Judge, Vellore has convicted the accused for the offence punishable under Section 302 of the I.P.C. and sentenced him to undergo life imprisonment. 3. The charge as against the appellant/accused is that, on 23.8.1997, at about 4.30 a.m. at Nimmiyampattu Village, the accused threw a big stone violently upon the head of his wife Baby with an intention to cause her death and thereby committed murder, punishable under Section 302 of the I.P.C. 4. The brief text of the prosecution case, as unfolded by the witnesses examined on their side, is as follows:- 5. Baby was earlier given in marriage to one Gajendiran. Through that wedlock, she was blessed with a female child and a male child. The occurrence took place on 23.8.97. About 11/2 years prior to the said occurrence, Bay came out of the matrimonial home and started living with her mother at Karikal. The accused earlier was transacting Pig business. He fell in love with the said Baby and about three months prior to the occurrence, they got married and came down to Melnimmiyampattu where PWs.1 and 2 were residing. The accused and the deceased Baby started living in a portion of the house of the house of Raja PW.1. 6. Baby expressed her desire to go over to Arakkonam where her children were residing with the first husband. The accused protested to the proposal of the deceased to go over to the house of her erstwhile husband. 7. The deceased Baby was jobless for some time. Therefore Raja PW.1 went along with the deceased Baby to Vaniyambadi to secure some job for her in a tannery. That was also not liked by the accused. The accused used to tell the deceased that he did not like her to go for job. On 22.8.1997, PWs. 1 and 2 the accused and the deceased went to a theatre to see a film. When they were coming back from the theatre, Baby insisted that she should go to Arakkonam to see her children. But the deceased refused permission as sought for by the deceased. 8. PWs. 1 and 2 had gone to sleep. On 22.8.1997, PWs. 1 and 2 the accused and the deceased went to a theatre to see a film. When they were coming back from the theatre, Baby insisted that she should go to Arakkonam to see her children. But the deceased refused permission as sought for by the deceased. 8. PWs. 1 and 2 had gone to sleep. At about 4.30 A.M. on 23.8.1997, there was a noise in the house of Baby. PWs. 1 and 2 went to the house of Baby where they found that Ramesh and Baby picked up a quarrel. When the quarrel reached its crescendo, the accused Ramesh came out of his house, picked up a stone MO-1 and threw it violently on the head of the deceased when she was lying on the ground. The moment neighbours arrived at the house of Ramesh, the latter sped away from the scene of occurrence. 9. PW.1 went to Alangayam Police Station at about 6.00 A.M. on 23.8.1997 and gave a complaint Ex.P 1 to the Sub Inspector of Police PW. 6 who was present over there. PW. 6 registered a case in Crime No. 349 of 1997 for an offence underSection 302 of the I.P.C. and prepared printed FIR Ex. The accused Ramesh is the sisters son and the deceased Baby is the brothers daughter of Raja PW.1 Jayanthi PW.2 is none other than the wife of Raja PW.1. P.11. He handed over a copy of the printed FIR to the Inspector of Police PW.7 and despatched the original to the learned Judicial Magistrate No. 4, Tirupattur. 10. The Inspector of Police, PW. 7 having received a copy of the FIR at about 6.00 a.m. on the said day, rushed to the scene of occurrence at Nimmiyampattu and prepared observation mahazar Ex.P.2 in the presence of Village Administrative Officer PW. 3 Balu. He also drew a rough sketch Ex.P.12 reflecting the scene of occurrence. He seized blood stained stone MO-1, Blood stained Bangle glass pieces MO-2, Blood stained Mat MO-3, Blood stained aluminium steel pipe with screw MO-4, Blood stained earth MO-5 and sample earth MO-6 under relevant seizure mahazar Ex.P. 3 in the presence of PW.3. 11. Between 9.30 a.m. and 1.00 p.m. on the said day, PW. 7 held inquest over the dead body of Baby in the presence of Panchayatdars and prepared inquest report Ex.P.13. 12. Dr. 11. Between 9.30 a.m. and 1.00 p.m. on the said day, PW. 7 held inquest over the dead body of Baby in the presence of Panchayatdars and prepared inquest report Ex.P.13. 12. Dr. Ramesh, PW.5 who received a requisition from the Inspector of Police PW.7 commenced post mortem examination at 5.00 p.m. on 23.8.1997. He found a crush lacerated injury over left ear bilateral, left temporal and left occipital bone. He has also observed that the aforesaid bones were found broken. He has opined in his post mortem certificates Ex.P.10 that the deceased appeared to have died of pain and shock due to crush lacerated injury as detailed above. 13. On 23.8.1997 at about 5.00 p.m., the accused was arrested at Chengumedu bus stop in the presence of PW.3. The full sleeved polyester dress MO-7 was recovered from his possession under relevant seizure mahazar Ex.P.4 in the presence of the aforesaid witness. The accused as well as the material objects were remanded to judicial custody. S.K. Nizar, Ahmed PW.4, the Head Clerk attached to the learned Judicial Magistrate has spoken to the requisition Ex.P. 5 given by the Inspector of Police, PW.7 to send the material objects for chemical examination and the Biologist report Ex.P 7 and Serologist report Ex.P. 8 received from the chemical examiner. 14. As PW. 7 had already been transferred, his successor, having perused the file, laid the final report under Section 302 of the I.P.C. before the learned Judicial Magistrate concerned. 15. The incriminating circumstances found in the testimony of the prosecution witnesses were put forth in the form of questionnaire underSection 313 of the Code of Criminal Procedure to the accused. The accused, responding to the questionnaire, has stated that a false case has been foisted on him. He had disputed each and every incriminating statement found in the evidence of the witnesses examined on the side of the prosecution. 16. The trial Judge, having relied upon the testimony of Raja, PW.1 and Jayanthi, PW.2 the ocular witnesses in this case, has returned a verdict of conviction. 17. Learned counsel for the appellant/accused would submit that except PWs. 1 and 2, who are related to the deceased, no other independent witness was examined on the side of the prosecution to speak about the occurrence. Further, their testimony is found to be unbelievable and untrustworthy. Though PWs. 17. Learned counsel for the appellant/accused would submit that except PWs. 1 and 2, who are related to the deceased, no other independent witness was examined on the side of the prosecution to speak about the occurrence. Further, their testimony is found to be unbelievable and untrustworthy. Though PWs. 1 and 2 would state that the neighbours had come down to the place of occurrence on hearing the noise, nobody had made any attempt to apprehend the accused at the scene of crime itself. 18. Further, he would submit that even if the case of the prosecution is accepted, the case of the prosecution does not squarely fall under Section 302 of the I.P.C. 19. Learned Additional Public Prosecutor would submit that the trial Court has rightly relied upon the ocular witnesses PWs. 1 and 2 and returned a verdict of conviction. It is his submission that the accused also was related to PW.1. Therefore, the testimony of PWs. 1 and 2 cannot be discarded on the ground that PW.1 was related to the deceased. 20. The occurrence had taken place at 4.30 A.M. on 23.8.1997. It is seen that the deceased and the accused had come down to Nimmiyampettu village about three months prior to the occurrence. The sketch Ex.P.12 would reflect that the house of one Varadha Gounder is little away from the portion of the house occupied by the deceased and the accused. As deposed by PW.1 Raja, accused Ramesh had resided along with his wife in a portion of the house belonged to PWs.1 and 2. The sketch would further reveal that there is no residential house found on the eastern side of the place of occurrence. As the accused and the deceased were residing in a portion of the house of P.Ws. 1 and 2, the latter have woken up the moment they heard some noise from the portion of the house of Raja P.W.1. P.W.1 would admit that the quarrel continued for about ten minutes. P.Ws. 1 and 2 found that the deceased was insisting that she would go to Arakkonam to see her siblings. But the accused had resisted the request made by the deceased. The accused, in a fit of anger, came out of the house and, having collected a big stone found nearby their house, violently threw the same on the head of the deceased who was lying on the floor. But the accused had resisted the request made by the deceased. The accused, in a fit of anger, came out of the house and, having collected a big stone found nearby their house, violently threw the same on the head of the deceased who was lying on the floor. Baby had succumbed to the injuries within few minutes. In the meantime, the neighbours had gathered over there. The accused had sped away from the scene of occurrence immediately thereafter. 21. P.Ws.1 and 2 have not stated that the neighbours witnessed the occurrence. It is their consistent version that the neighbours came to the scene of occurrence only after the occurrence had taken place. The accused had run away only after the crowd gathered over there. It is quite natural for the neighbours P.Ws.1 and 2 to witness the occurrence having heard the noise from the portion of the house of the deceased and the accused. We cannot expect any other neighbours to come to the scene of occurrence at the odd hours even before the occurrence had taken place. As the arrival of the crowd synchronized with the departure of the accused, there would have been no chance for the crowd to give a chase. 22. PW.1 has categorically spoken to the fact that the deceased Baby was the brothers daughter and the accused Ramesh was his sisters son. Not only the deceased but also the accused is related to P.W.1. Therefore there is no reason for P.Ws.1 and 2 to speak ill of the accused who is also closely related to P.W.1. 23. Dr. Ramesh PW.5 has categorically spoken to the fact that the injury found on the head of the deceased would have been caused if a person violently throws a stone from above four feet. 24. We find that the prosecution has established through the ocular testimony of P.Ws.1 and 2, whose evidence could not be shaken in spite of the searching cross examination done by the defence, that it was only the accused who caused the death of his wife Baby. 25. P.Ws.1 and 2 have admitted that there was a quarrel which preceded the occurrence proper. During the course of cross examination, PW.1 has stated that the quarrel continued for about 10 minutes. 25. P.Ws.1 and 2 have admitted that there was a quarrel which preceded the occurrence proper. During the course of cross examination, PW.1 has stated that the quarrel continued for about 10 minutes. It is their version that the accused, in a fit of anger, came out of the house and, having collected the big stone MO-1, threw it violently on the head of Baby and caused her death. It is found that the accused was warning his wife not to go over to the house of her former husband. 26. Thus it is clear that in the heat of passion accused attacked his wife and caused her death. If there had been any premedication to cause the death of his wife, he would not have searched for some weapon of offence when the quarrel reached its crescendo. Therefore, we find that there had been no premeditation also to cause the death of his wife. The prosecution witnesses have not spoken to the fact that the quarrel, which started when all of them were coming back from the hereafter continued till 4.30 A.M. At 4.30 A.M., PWs.1 and 2 have heard a noise for about 10 minutes from the house of the deceased and thereafter the occurrence had taken place. Therefore, we find that the present case falls squarely under Exception 4 to Section 300 of the I.P.C. and not under Section 302 of the I.P.C. 27. Considering the weapon used by the accused, the seat of injury and the instantaneous death caused to Baby, we are of the definite opinion that the accused would have intended to cause the death of his wife Baby. Therefore, we propose to impose punishment under Section 304(i) of the I.P.C. 28. In the result, we set aside the judgment of conviction recorded by the trial Judge under Section 302 of the I.P.C. Instead we convict the accused for the offence punishable under Section 304(i) of the I.P.C. and sentence him to undergo seven years rigorous imprisonment. The period of detention already undergone by the accused shall be set off. Consequently, the appeal is allowed in part.