JUDGMENT Hon’ble M. Chockalingam, J.—The sole accused in a case of murder who stood charged, tried and found guilty as per the charge under Section 302 of I.P.C. and awarded life imprisonment by the Principal Sessions Division, Dindigul, in S.C. No. 6/96, has brought forth this appeal challenging the said judgment. 2. The short facts necessary for the disposal of this appeal are : (a) The appellant/accused is the husband of the deceased Maria Geetha. P.W.1 is the maternal aunt of the deceased. P.W. 2 is the husband of P.W. 1. The marriage between the accused and the deceased took place 6 months prior to the date of occurrence. He suspected her fidelity, and the same was complained of. There was a panchayat convened on 20.11.1995. In that panchayat, it was decided that they should live together, to which course he was not amenable, and both of them left for the house. On 21.11.1995 at 3.00 A.M., according to the prosecution, when they were in their house, he strangulated her and caused her death, and she died out of asphyxia. On that day, when P.W. 6, the Head Constable, attached to Dindigul South Town Police Station, was on duty, P.W. 1 came to the Police Station and gave a report, Ex. P5, on the strength of which a case came to be registered in Crime No.1000/95 under Section 302 of I.P.C. The express First Information Report, Ex. P6, was sent to the Court. (b) On receipt of the copy of the F.I.R., P.W. 7, the Inspector of Police, took up investigation, proceeded to the scene of occurrence, made an inspection and prepared Ex. P1, the observation mahazar, and Ex. P2, the rough sketch. He also made an inquest on the dead body of Maria Geetha in the presence of witnesses and panchayatdars and prepared Ex. P7, the inquest report. Then, the dead body was sent to the Government Hospital for the purpose of autopsy along with a requisition. P1, the observation mahazar, and Ex. P2, the rough sketch. He also made an inquest on the dead body of Maria Geetha in the presence of witnesses and panchayatdars and prepared Ex. P7, the inquest report. Then, the dead body was sent to the Government Hospital for the purpose of autopsy along with a requisition. (c) P.W. 5, the Assistant Surgeon, attached to the Government Head Quarters Hospital, Dindigul, on receipt of the requisition, conducted autopsy on the dead body of Maria Geetha and found the following : “Injuries blackish discoloration of the skin starting from the upper 1 /3 of the nape of the neck running up to the mark which is 2 cm below and behind the left ear lobe which dissecting the underlying tissue shows extravasation of blood echymosis seen. Congestion found on the neck muscles and tissues underlying the muscles. Appearance tally with police report.” The Doctor has issued a postmortem certificate, Ex. P4, with her opinion that the deceased would appear to have died of asphyxia due to strangulation, within 10 to 12 hours prior to postmortem. (d) Pending the investigation, the accused was arrested at about 6.00 A.M. on the very day. A requisition was given to the Judicial Magistrate for recording the statement of the accused under Section 164 of Cr.P.C. Following the procedural formalities, P.W. 4, the Judicial Magistrate No. 1, Dindigul, recorded the statement of the accused under Section 164 of Cr.P.C. The proceedings are Ex. P3. Following the same, he was sent for judicial remand. On completion of investigation, the Investigator filed the final report. 3. The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charge, the prosecution examined 7 witnesses and relied on 7 exhibits and 1 material object. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 of Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses, which he flatly denied as false. In order to substantiate the charge, the prosecution examined 7 witnesses and relied on 7 exhibits and 1 material object. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 of Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses, which he flatly denied as false. In his statement under Section 164 of Cr.P.C, he has stated that he suspected her fidelity; that he came to know about her illicit intimacy with one Nagaraj; that she was carrying three months fetus even after 20 days from the time of the marriage; that he advised her to reform herself; but, she continued to have connection with the said Nagaraj; that the panchayat was also against him, and therefore, on the date of occurrence, he killed her. Form 95 in respect of the recovery of M.O.1, saree, was marked by the Court as Ex.C1. No defence witness was examined. The Court heard the arguments advanced on both sides, found the accused guilty as per the charge of murder and awarded life imprisonment. Hence, the conviction recorded, and the sentence awarded by the lower Court are being challenged by the appellant before this Court. 4.The learned Counsel Mr. D. Selvaraj arguing for the appellant, would submit that in the instant case, there are no eye-witnesses to the prosecution case; that P.Ws. Hence, the conviction recorded, and the sentence awarded by the lower Court are being challenged by the appellant before this Court. 4.The learned Counsel Mr. D. Selvaraj arguing for the appellant, would submit that in the instant case, there are no eye-witnesses to the prosecution case; that P.Ws. 1 and 2 are the close relations of the deceased, but turned hostile; that even the recorded evidence though they turned hostile, was not available for the prosecution, and thus, there are no eye-witnesses to the prosecution case; that what was available for the prosecution was only the statement of the accused recorded by the Judicial Magistrate under Section 164 of Cr.P.C; that the statement has got to be rejected for more reasons than one; that the appellant was arrested on 21.11.1995; that he was in police custody till he was produced before the Judicial Magistrate on 23.11.1995; that there is no explanation for that period; that apart from that, during that period, he was pressurised by the police; that because of the fear for the police, he has given such a confession before the Court, and thus, it was not a voluntary confession; that this statement recorded by the Judicial Magistrate under Section 164 of Cr.P.C., is also hit by the provisions of the Criminal Procedure Code; that the Judicial Magistrate has not followed the mandatory provisions; that he has not given sufficient time to think about; that he has also not questioned what were the reasons for him to give such a confessional statement; that he has not ascertained whether it was voluntary or not; that even before doing so, he has recorded the confession, and thus, the confession is hit under the provisions of the Code of Criminal Procedure; and that in such circumstances, it cannot be given any effect. 5. In support of his contention, the learned Counsel relied on the three decisions of the Apex Court namely (1) 1978 Cri LJ 1614, Devendra Prasad v. State of U.P., (2) 1986 Cri LJ 551, Palanisamy v. State of Tamil Nadu; and (3) AIR 1995 SC 980 , Shivappa v. State of Karnataka. 6. The learned Counsel would further add that in view of the fact that P.Ws. 6. The learned Counsel would further add that in view of the fact that P.Ws. 1 and 2 became hostile, and the statement of the accused under Section 164 of Cr.P.C. becomes hit by law, and there is no evidence for the prosecution, he is entitled for an outright acquittal, which the lower Court has failed to do. 7. The Court heard the learned Additional Public Prosecutor on the above contentions. 8. It is not in controversy that one Maria Geetha, the wife of the appellant/accused, died out of asphyxia due to strangulation on 21.11.1995 at 3.00 a.m. In order to substantiate the same, the medical opinion was also canvassed, and the postmortem Doctor has also been examined. The postmortem certificate issued by the Doctor, has also been brought to the notice of the Court in that regard. In such circumstances, without any impediment it can be recorded that she died out of asphyxia due to strangulation. 9. Now, the question that would arise for consideration would be whether the prosecution has proved the nexus of the crime with the accused. Admittedly, the appellant is the husband of the deceased. Six months prior to the date of occurrence, the marriage took place between the spouses, and they were living at Coimbatore. They came to the place of marriage namely Dindigul, just 20 days prior to the occurrence. There was a panchayat that took place on 20.11.1995, and in that panchayat, he also mentioned that he got suspicion over her fidelity; but, the panchayatar decided that they should live together at Dindigul. Thereafter, both of them left for home. According to the prosecution case, the occurrence has taken place in the house of the accused. Thus, the fact that both of them were staying in the same house, which is situated in a colony, on the night of the occurrence, is not disputed by the appellant. It is not his case that at the time of the occurrence, he was away; but, he was staying with his wife. The occurrence has taken place during night hours and that too, at 3.00 A.M. Thereafter, he left the place of occurrence. If the death of Maria Geetha has taken place in any other manner than one put forth by the prosecution, the only person having special knowledge to speak about the same, is the accused himself. The occurrence has taken place during night hours and that too, at 3.00 A.M. Thereafter, he left the place of occurrence. If the death of Maria Geetha has taken place in any other manner than one put forth by the prosecution, the only person having special knowledge to speak about the same, is the accused himself. But, he has not tendered any explanation in that regard. Naturally, one would expect the husband to come with a responsible answer, when the occurrence has taken place inside a closed house. At this juncture, it has to be pointed out that the appellant/accused had no answer in this regard. This, in the opinion of this Court, is a strong circumstance against the appellant/accused. 10. P.Ws. 1 and 2 who are the close relations, have turned hostile. Needless to say that even though they have turned hostile, the evidence recorded by the trial Court, can be relied on to the extent, which is in favour of the prosecution. They have spoken to the fact that there was a marriage between the spouses; that he suspected the fidelity; that a panchayat was convened, pursuant thereto; that from the panchayat, both of them left the very day; and that the occurrence has taken place on that night. To this extent, the prosecution had the evidence of P.Ws. 1 and 2. Now, in the instant case, a strong piece of evidence against the accused is the statement of the accused recorded by the Judicial Magistrate under Sec. 164 of Cr.P.C. The contention put forth by the learned Counsel for the appellant that it is hit by the provisions of the Code of Criminal Procedure cannot be countenanced. In the instant case, he was arrested on 21.11.1995, and he was produced before the Judicial Magistrate on 23.11.1995. The Judicial Magistrate has clearly recorded that he was produced from the Sub Jail, Dindigul, by two Constables. This would be indicative of the fact that he should have been remanded to judicial custody, and at the time when he was produced, he was brought only from the judicial custody. Thus, the contention that he was under custody of police has got to be discountenanced. 11. This would be indicative of the fact that he should have been remanded to judicial custody, and at the time when he was produced, he was brought only from the judicial custody. Thus, the contention that he was under custody of police has got to be discountenanced. 11. The next contention put forth by the appellant’s side that the statement given by him, was not voluntary, and because of compulsion and threat by the police and also out of fear, it was made, has got to be discarded for the simple reason that the Judicial Magistrate who recorded the statement under Sec.164, has put forth a clear question in this regard and got an answer from him that there was no compulsion or threat from the hands of the police. Apart from that, the Magistrate has followed the procedural formalities and also further informed him that if he makes a confession, that would be used against him, and ascertained that he was not under any compulsion to give such a statement. Even after knowing that and putting that caution, the statement has been recorded by the Magistrate. Thus, it would be abundantly clear that the Magistrate took the note of caution as contemplated under Sec. 164 of Cr.P.C. and thereafter, recorded the statement. Now, at this juncture, the contention put forth by the appellant’s side that the statement recorded under Sec.164 by the Judicial Magistrate, is hit by the provisions of the Criminal Procedure Code has got to be brushed aside. A reading of the statement under Sec.164 recorded, would clearly indicate that the accused has narrated the entire incident, and how he was compelled to cause the death of his wife. It can be well stated that the above circumstances are pointing to the guilt of the accused that it was he who caused the death of his wife by strangulation and thereby, the asphyxia caused her death. 12. Now, coming to the question of the nature of the act of the accused, this Court is of the considered opinion that the act of the accused would not attract the penal provisions of murder. In the instant case, there was a marriage that took place between the spouses. 12. Now, coming to the question of the nature of the act of the accused, this Court is of the considered opinion that the act of the accused would not attract the penal provisions of murder. In the instant case, there was a marriage that took place between the spouses. From the said confessional statement, it could be seen that after 20 days from the date of marriage, he came to know that she was pregnant carrying an unborn child of three months, and thus, he suspected her fidelity; that he came to know that she had got illicit intimacy with one Nagaraj; that he advised her to the best; but, she did not pay heed to his advise; that instead, she continued to have connection with the said Nagaraj; that there was a panchayat also convened; and that in that panchayat also, he narrated the said affair; but, he was compelled to live with her. Thus, it would be quite clear that the above state of affairs gave him provocation for doing such an act. In such circumstances, the act of the accused would not fall within the ambit of murder, since no premeditation is brought about, nor had it been preplanned; but, it was done by him due to the provocation, which continued to be in his mind, in that she did not pay heed to his advise, and in the panchayat also, he was compelled to live with her. Under the circumstances, this Court is of the opinion that the act of the accused would not fall within the ambit of murder, but would attract the penal provisions of Section 304 (Part I) of I.P.C. It would be suffice to award a punishment of 7 years Rigorous Imprisonment, which, in the opinion of the Court, would meet the ends of justice. Hence, the conviction recorded under Section 302 of I.P.C. and the consequent sentence of life imprisonment imposed by the lower Court, are modified, and in that place, he is convicted under Section 304 (Part I) of I.P.C. and sentenced to undergo 7 years Rigorous Imprisonment. The sentence already undergone by him, is to be given set off. 13. In the result, with the above modification in conviction and sentence, this criminal appeal is dismissed. It is reported that he is on bail. The sentence already undergone by him, is to be given set off. 13. In the result, with the above modification in conviction and sentence, this criminal appeal is dismissed. It is reported that he is on bail. Hence, the Sessions Judge shall take steps to commit him to prison to undergo the remaining period of sentence. Appeal Dismissed. ———