Judgment :- (This Criminal Appeal is filed preferred against the conviction and sentence passed by the learned Principal Sessions Judge, Chennai in S.C.No.339 of 2003 dated 28.11.2003.) A.C. Arumugaperumal Adityan, J. This appeal has been preferred against the Judgment in S.C.No.339 of 2003 on the file of the Principal Sessions Judge, Chennai. It is a case of matricide. According to the prosecution the accused was having a grudge against his mother, who had left the matrimonial home, and was living with P.W.5-Thiru Joseph Louis. The accused on 27.05.2003 at about 6.00 a.m. came to the house of P.W.5 where his mother, the deceased was living had assaulted his mother, Victoria with iron pipes and also had slited her throat with a knife causing instantaneous death. 2. The complaint was preferred by P.W.1, Dakshayani, who is the landlord of the house in which P.W.1 and the deceased were residing. P.W.2 to P.W.4 are the neighbours of P.W.1, who are the ocular witnesses in this case according to the prosecution. Ex. P.1-complaint was preferred to P.W.8-The Inspector of Police, who had registered a case under Section 302 I.P.C. in Crime No. 654 of 2003 on the basis of Ex. P.1, complaint and Ex.P.8, the printed FIR. P.W.8, the Investigating Officer visited the place occurrence and prepared Ex.P.2, Observation Mahazar and Ex.P.9, Rough sketch. Thereafter, he had conducted inquest in the presence of Panchayatars. Ex.P.10 is the inquest report. After observing other formalities and after examining the witnesses and recording their statements he has arrested the accused at 6.45p.m. on 27.05.2003 itself and had sent the accused for judicial custody. After completing the investigation P.W.8 has filed the charge sheet against the accused. 3. The case was taken on file by the learned XVIth Metropolitan Magistrate in PRC.No.104 of 2003 on the appearance of the accused. Copies under Section 207 of Cr.PC. were furnished to the accused and since the case is triable by the Court of Sessions, the learned Magistrate has committed the case to the Principal Sessions Court, Chennai for trial under Section 209 Cr.P.C. The learned Principal Sessions Judge, Chennai has framed charge under Section 302 I.P.C. against the accused and when questioned the accused pleaded not guilty. Before the Sessions Court P.Ws.1 to 8 were examined and Ex.P.1 to P.14 and M.O.1 to M.O.9 were marked. Before the Sessions Court P.Ws.1 to 8 were examined and Ex.P.1 to P.14 and M.O.1 to M.O.9 were marked. When incriminating circumstances under Section 313 Cr.P.C. were put to the accused, the accused denied his complicity with the crime. On the basis of the available documentary and oral evidence the learned Principal Sessions Judge, Chennai has found the accused guilty against the charge levelled against him and convicted under Section 302 I.P.C. and sentenced him to undergo life imprisonment and also slapped a fine of Rs.2,000/- with default sentence. Aggrieved by the findings of the learned Principal Sessions Judge, Chennai the accused has preferred this appeal. 4. We have heard the submissions of the learned counsel appearing for the appellant Thiru N.F.J. Ponnudurai and the learned Government Advocate Thiru V.R. Balasubramanian. 5. Now, the point for determination in this appeal is whether the conviction and sentence under Section 302 I.P.C. Is liable to be set aside for the reasons stated in the grounds of appeal? 6. The point :- It is an unfortunate case, in which the son has murdered his own mother. To bring home the guilt of the accused, the prosecution has examined P.Ws. 1 to 5 as ocular witnesses. All the ocular witnesses have turned hostile. P.W.8 is the Investigating Officer. According to P.W.8, Ex.P1-complaint was preferred by P.W.1. In Ex.P1-complaint, P.W.1 has stated that the deceased Victoria was residing with P.W.5 in the ground floor of the house belonging to her (P.W.1) and that she is also residing in the same flat in the second floor, and that the deceased after leaving her matrimonial home, was living with P.W.5 in the said apartment and her son, the accused Rock Bellar used to visit the house very often. The accused used to ask his mother Victoria to go and live with her husband (father of the accused) and in this regard they used to quarrel very often. P.W.1 has further stated that on 27.05.2003 at about 6.00.a.m. she heard hue and cry from the ground floor, and thereupon she came to the ground floor where she saw, the accused abusing his mother in a filthy language and assaulted repeatedly with iron pipe on the head of Victoria, who had raised alarm and there upon the accused took out a knife from his pant pocket and slited the throat of Victoria causing instantaneous death. After seeing the occurrence she had locked the door from outside and went to the police station and lodged Ex. P.1 the complaint. While deposing before the Court P.W.1, Dakshayini had deposed to the effect that on hearing the hue and cry on 27.05.2003 on the early hours she came down to the ground floor wherein the deceased was living and pressed the calling bell for the ground floor house and saw the accused inside near the window and that the accused has bolted the house from inside. Hence, immediately (P.W.1) rushed to the police station along with Joseph (P.W.5) and lodged Ex.P.1, complaint. She has further deposed to the fact that the police immediately came to the place of occurrence and broke open the door and went inside the house in the ground floor and recovered the iron pipe from the place of occurrence and also arrested the accused and took the accused to the police station. She has also seen inside the house the deceased, Victoria lying dead near the foot step. Since P.W.1 has not deposed to the fact that she has witnessed the occurrence assaulting the deceased with iron pipe and also slited her throat with knife she was treated as a hostile witness. 7. P.W.2 to P.W.5 have also treated as hostile witness because they have not deposed to the fact that they have seen the accused assaulting the deceased with iron pipe and knife. But the fact remains that all the witnesses i.e. P.W.1 to P.W.4 have cogently and coherently stated that at the place of occurrence viz, in the ground floor inside the house the deceased Victoria was lying dead and the accused was found near the dead body with a knife (M.O.1) and iron rod (M.O.2). P.W.5 has categorically stated in his evidence and during the examination that at the time when he saw the house on 27.05.2003 at 6.40 a.m. the door was found locked from inside and at that time, the accused was found inside the house and the deceased Victoria was lying dead in a pool of blood. He had also seen the accused, holding a knife (M.O.1) in his hand and the iron pipe (M.O.2) was found inside the house. He had also seen the accused, holding a knife (M.O.1) in his hand and the iron pipe (M.O.2) was found inside the house. P.W.5 has spoken to the effect that the deceased Victoria was already married with one Densy, who is the father of the accused and that he (P.W.5) had married with one Manjula in the year 1990. But due to some misunderstanding in the family, Manjula got separated and living at Pattukottai within three months after the marriage and that he is residing at the place of occurrence with the deceased Victoria and his mother Rose Mary some three moths prior to the date of occurrence. P.W. 4, P.W.3, P.W.2 have also spoken to the fact that the accused was arrested by the police from the house after broke open the door. Even during incriminating circumstance were put to the accused the accused had admitted that he was arrested by the police in the place of occurrence, but, he has not given any explanation for his presence at the place of occurrence inside the house boalting the door from inside. 8. P.W.7, the Doctor who had conducted autopsy on the corpse of the deceased has deposed to the fact that he could see: "Eliptical Stab wound 3 x 1cm x Thoracic Cavity deep over back of left side of chest 5 cm medial to posterior axillary line and also six inside wounds in the front of lower neck on the sternal notch, measuring 2 x 0.5cm, 2 x 0.5cm, 1 x 0.5cm, 1 x 0.3c.m., 1 x 0.5c.m. And 1 x 0.5 c.m. And the doctor has also found irregular lacerated wound 6 x 3 cms bone deep over right side of fore-head on to the right eye-brow 2 cms above and medial to this injury a verticle irregular lacerated wound 12 x 6 cms. X bone deep seen over right fronto tempo Parietal region exposing fractured skull bone, 2 cms lateral to this injury, 6 x 1cm x bone deep Horizontal lacerated wound over right Tempro Parietal region seen". 9. Ex.P. 6 is the Post Mortem report issued by P.W.7 and the doctor has opined that the injuries stated in Ex.P.6 would have been caused by weapons like M.O.1 (Knife) and M.O.2 (iron pipe). 9. Ex.P. 6 is the Post Mortem report issued by P.W.7 and the doctor has opined that the injuries stated in Ex.P.6 would have been caused by weapons like M.O.1 (Knife) and M.O.2 (iron pipe). P.W. 6 has also deposed to the fact that on 27.05.2003 at about 6.00.a.m he had heard the hue and cry from the place of occurrence and he came out from his house and saw the accused standing inside the house and the accused was seen with a knife and iron pipe and the police came and arrested the accused and took him to the police station. So, we are of the considered view that the finding regarding conviction need not be interfered with. The learned counsel appearing for the accused/appellant would submit that the accused is an youth of 20 years of age and the motive for the occurrence is that since his mother after deserting the family, is living with P.W.5 which made him to develop a grudge against her and when she refused to go with him to live with the family which caused sudden provocation, which resulted in murder and that he is liable to be punished only for a lesser offence. 10. The learned counsel appearing for the accused in this respect relied on the confession statement recorded by the P.W. 8 from the accused after his arrest. Even though the confession statement was not marked it is available with the records which will go to show that the request made by the accused to the deceased to come and live with the family has been turned down by the deceased and the conduct of the deceased, living with P.W.5 had made the accused to plead before the deceased to go and live with his father who is the husband of the deceased. The relevant passage in the confession statement of the accused Rock Beller to P.W. 8 is as follows: ",[[d;W 27/05/2003 njjp fhiy Rkhh; 6/00 kzpf;F vd; mk;kh tPl;ow;F te;J vd; mk;khtplk; mk;kh vd;ndhL te;JU';f. ehbky;yhk; giHago nrh;e;J xw;Wikah thHyhk; vd;W miHj;njd;/ mth; ehd; Vw;fdnt brhd;d khjphp n$hrg; Yhap!; jhd; vd; caph;/ ehd; ahUlDk; tukhl;nld; nghlh vd;W brhd;dhh;/ clnd ehd; Mj;jpuj;jpy; nfhgk; jh';fhky; tPl;;od; :Kiyapy; fple;j xU ,Uk;g[ igg;ig vLj;J vd; mk;khtpd; jiyapy; ,uz;L Kiw moj;njd;/ mth; epiyFiye;J fPnH tpGe;jhh;/ Mdhy; rhftpy;iy/ ,jdhy; btwp jh';f Koahky; vdJ ngd;l; ghf;bfl;oy; itj;jpUe;j klf;Ff; fj;jpia vLj;J vd; mk;kh fGj;jpy; Fj;jp mWj;njd;/ mth; JoJoj;J ,we;J nghdhh;"/ When this request was turned down, by the deceased the accused due to sudden and sustained provocation, had assaulted his mother with iron pipe and knife causing instantaneous death. 11. In this aspect we have also heard the learned Government Advocate who has also conceded that the offence under Section 304 (1) will be attracted in this case. The case law on this point is 1997 (2) MWN (Crl.) 141 Venkatesan vs. State by Inspector of Police, Thirupporur The facts of the said case is that ; "On the fateful day on 16.10.1986 at about 11.00.p.m. With the appellant after finishing his work in the school unusually came back home at 11.00.p.m. At that time the deceased was not found available in the house. The house was found open. After a short while, the deceased came home from the neighbouring house, the appellant asked her as to where she had gone in the night hours. She replied, "I would go any where and come back at anytime. Who are you to question me?" So, saying, she went inside the house and took bed in a mat. The appellant got up and then took out a stone found near the house and threw it on the head, which resulted her death. When this act of the accused was questioned by P.W.1, the appellant had retaliated by saying that since he could not bare the shame received at the hand of the deceased by her conduct he had decided to put the stone on her while she was asleep". 12. When this act of the accused was questioned by P.W.1, the appellant had retaliated by saying that since he could not bare the shame received at the hand of the deceased by her conduct he had decided to put the stone on her while she was asleep". 12. The other important ratio decidendi in this aspect is 2004 (1) L.W. (Crl.) 67 Muthuvel, Sanjeevi Pulavar vs. State by Inspector of Police, Keelarajakularaman Police Station, Virudhunagar District The appellant in that case was convicted for having murdered his wife under Section 302 I.P.C. the confession statement of the accused is to the effect that only due to sudden and grave provocation he has caused the death of his wife. The fact of the said case is that on the fateful day i.e on 26.10.1996 at about 4.30.p.m. The accused/appellant had asked the deceased Kalaiselvi to take bed with him for sexual intercourse. The deceased, who was suffering from wound on her private part, refused to share bed with him. However, the first accused insisted that she must come and co-operate with him to have sexual intercourse. But, the deceased refused to have intercourse with him. Then the first accused abused her stating that as a husband he had a right to have intercourse with her, she retaliated by saying that she would not want to live with him as wife anymore. Stating so, she removed her Thali from her neck and threw it on his face and also kicked him. Getting enraged at this, the first accused took a Pillow, M.O.5 and forcibly pressed the same on her face. Within a few minutes, the deceased died. 13. It has been held in that case that for deciding the nature of the offence committed by the first accused, it is stated that the confession statement given by him to the police officer, P.W.21, can be considered in entirety in view of the fact that it contained some facts which would be in favour of the accused. 14. The principle laid down in the above said decisions will squarely apply in the present facts of the case since, the accused had committed murder only due to sudden and sustained provocation. The act of the accused will come only under the exception 4 to Section 300 I.P.C. which warrants conviction only under Section 304 (1) I.P.C. and not under Section 302 I.P.C. 15. The act of the accused will come only under the exception 4 to Section 300 I.P.C. which warrants conviction only under Section 304 (1) I.P.C. and not under Section 302 I.P.C. 15. We are of the considered view that the accused is liable to be convicted and sentenced only under Section 304 (1) I.P.C. and not under Section 302 I.P.C. 16. In the result, the appeal is partly allowed and the conviction and sentence imposed on the appellant/accused by the Trial Court for the offence under Section 302 I.P.C. are set aside. Instead, he is convicted for the offence under Section 304 (1) I.P.C. and sentenced to undergo rigorous imprisonment for seven years. The fine amount imposed by the Trial Court is confirmed. Since, the appellant is on bail, the Trial Court is directed to take steps to secure his custody to undergo the remaining period of sentence.