Judgment : Per R. BALASUBRAMANIAN, J. 1. The Appellant is the accused in S.C. No. 118 of 1997 on the file of the Court of Sessions, Kamarajar District at Srivilliputhur. In that Session Case, she stands convicted under Section 302 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs.100/-, carrying a default sentence. Heard Mohideen Basha, learned counsel appearing for the appellant and K. Chellapandian, learned Additional Public Prosecutor appearing for the State. 2. It is an unfortunate case of wife setting fire to her husband after pouring kerosene on him as a result of which he died. The occurrence is shown to have taken place at 12 in the midnight of 7.5.1996 ( i. e.) the intervening night of 7.5.1996 and 8.5.1996. The prosecution had examined P.W.2 as an eye-witness. She is the daughter of the deceased and the accused. She would state that her father poured kerosene by himself on him, set fire to him and then rolled. As he wanted water, she and her mother (accused) gave him water and it was night time. She would also state that on hearing her mothers call, she opened her eyes and at that time, she saw father in fumes and that she also saw her father setting fire to himself. Therefore, she was treated as hostile. P.W.1 is the mother of the deceased. She is not an eye-witness to the occurrence. But, however, on coming to know about the incident, she went to P.W.6s house, who is the mother of P.W.1. There, she saw her son and her son told her about the occurrence. She took him to the Government Hospital at Rajapalayam. The Sub-Inspector of Police came to the Hospital and by examining her son, Balakrishnan, since deceased, recorded his statement, Ex. P.1 is the said statement, in which she had signed. Four days later, her son died in the hospital. P.W.3, knows the accused as well as the deceased. He resides opposite to the house of the accused. He had seen the accused and deceased often quarrelling. Even on the occurrence day night around 9.30 p.m., they were quarrelling and he went to sleep. At 12.00 in the night, he heard a commotion outside and when he came out found Balakrishnan lying outside his house with burn injuries. He resides opposite to the house of the accused. He had seen the accused and deceased often quarrelling. Even on the occurrence day night around 9.30 p.m., they were quarrelling and he went to sleep. At 12.00 in the night, he heard a commotion outside and when he came out found Balakrishnan lying outside his house with burn injuries. Then Balakrishnan, since deceased, stood up and ran towards the P.W.4 and P.W.5, who are neighbours, examined in this case to speak about the occurrence, turned hostile. The evidence of these two witnesses that came to be recorded till they were treated as hostile is of no use either to the prosecution or to the accused. 3. P.W.11, is the casualty medical officer in the Government Hospital at Rajapalayam. At 7.30 a.m. on 8.5.1996, Balakrishnan, since deceased, appeared before him for treatment of burn injuries sustained by him. He sent Ex.P.7, information to the Police. P.W.15 is the Head Constable in the investigating Police Station. From Rajapalayam South Police station, he received an information over wireless about the medico legal case of Balakrishnan and he reached Rajapalayam South Police Station, where he collected the intimation and then reached the Hospital at 12.00 noon on 8.5.96. By examiningBalakrishnan, admitted as an inpatient in the hospital, in the presence of P.W.1 and PW.11, the doctor, he recorded the statement of Balakrishnan Ex.P.1 is the said statement, signed by Balakrishnan and attested by P.W.1. He got a certificate from P.W.11 that Balakrishnan was fit and in conscious state of mind to give the statement. At 1.00 p.m. on that day, he reached that police station and registered the statement of Balakrishnan as Ex.P.1 in Crime No. 294/96 under Section 307 I.P.C. Ex. P.15 is the printed F.I.R. He sent Exs. P.1 and P.15 to the Judicial Magistrate No.III, at Srivilliputhur, At 2.00 p.m. on 10.5.1996 he came to know from Rajapalayam South Police Station that they have received deathintimation Ex.P.16 from the Hospital. He proceeded to Rajapalayam South Police Station; collected the death intimation at 3.00 p.m., came back to his police station and altered the Section of offence into one under 302 I.P.C. Ex.P.17 is the altered express F.I.R. P.W.16 is the investigating officer. He proceeded to Rajapalayam South Police Station; collected the death intimation at 3.00 p.m., came back to his police station and altered the Section of offence into one under 302 I.P.C. Ex.P.17 is the altered express F.I.R. P.W.16 is the investigating officer. At about 1.45 p.m. on 8.5.1996, he received the express records Ex.P.1 and Ex.P.15 at 2.15 p.m. On that day he reached the scene of occurrence and prepared Ex,P.2 the observation mahazar in the presence of witnesses. Ex.P.18 is the rough sketch prepared by him. At 2.45 p.m. from the scene of occurrence, he recovered M.O.3 Multi coloured bed cover; kerosene plastic container with a lid M.O.1 and a match box with matchsticks M.O.2 under Ex.P.3, attested by witnesses. He examined P.Ws 1, 2, 5 and 7 by recording their statements. At 1.10 p.m. on 10.5.96, he came to know that Balakrishnan died in the Hospital and he received the altered F.I.R. Ex.p.17. The death intimation is Ex.P-16. At 4.00 p.m. he went to the Government Hospital at Rajapalayam and from 4.30 p.m. to 6.30 p.m. he conducted inquest over the dead body and prepared Ex.P.19, the inquest report. On prior information, at 7.15 a.m. on 11.5.1996 he arrested the accused near Meenakshi Hospital at Thalavaipuram and examined her in the presence of P.W.14 and another. At that time, the accused gave a confession statement, the admissible portion of which is Ex.P.13, pursuant to which, M.O.4 came to be recovered under Ex.P.14. 4. P.W.6 was aged about 85 years on the day when she gave evidence. She is the mother of P.W.1 and the deceased is her grandson. She is not an eye-witness to the occurrence. But her evidence shows that while she was sleeping Balakrishnan, since deceased came and woke her up. At that time she found him with burn injuries. P.W.7 witnessed the preparation of Ex.P.2, the observation mahazar and recovery of M.Os. 1 to 3 under Ex.P.3. P.W.8 is the medical officer in the Meenakshi Medical Hospital at Thalavaipuram. At 10.30 a.m. on 8.5.1996, the accused appeared before him for treatment regarding the burn injuries. She had suffered 20% bur injuries and she disclosed that she came to sustain burn injuries in her house. He treated her. The Police came to the Hospital and took Vijayalakshmi with them. Ex.P.4 is the wound certificate given by him to Vijayalakshmi. At 10.30 a.m. on 8.5.1996, the accused appeared before him for treatment regarding the burn injuries. She had suffered 20% bur injuries and she disclosed that she came to sustain burn injuries in her house. He treated her. The Police came to the Hospital and took Vijayalakshmi with them. Ex.P.4 is the wound certificate given by him to Vijayalakshmi. P.W.9 is the casualty medical officer in the Government Hospital at Rajapalayam before whom, at 1.15 p.m. on 11.5.1996 Vijayalakshmi /accused was brought by the police for treatement for burn injuries shown to have been sustained by her on the midnight of 7.5.1996. He found on her burn injuries and issued Ex.P.5 the wound certificate. P.W.10 was the Special Tahsildar for rehabilitation of down-trodden people at Srivilliputhur. He was on duty in the Rajapalayam circle on the relevant date. At about 11.00 p.m. on 8.5.1996 his service was requisitioned by the Government Hospital, Rajapalayam to record the dying declaration of a person. Accordingly, he reached the Hospital at 11.50 p.m. on the night, where he met P.W.11, the casualty medical officer. The Village Administrative officer was also there. Balakrishnan since deceased, was there as an inpatient with burn injuries. At 11.50 p.m., he recorded his dying declaration after introducing himself to him as a Special Magistrate. There was a lady by his side and on enquiry, he found that she is P.W.1. Balakrishnan was in a position to understand the identity of this witness. Then he disclosed that, on the previous night he was sleeping in his thatched house; at that time, from behind, his wife poured kerosene and then set fire to him; as she tried to run away, he attempted to catch here she escapted and none from outside came and saved him. He then stated that when he came out of the house running in flames, neighbours tried to put off the fire and his daughter was standing outside. He had also stated that for a long period he and his wife were having quarrel. Ex.P.6 is the dying declaration recorded by P.W.10. 5. P.W.12 is the doctor who did post-motem on the dead body of the Balakrishnan on receipt of Ex.P.9, the requisition for the same. he commenced postmortem at 6.00 a.m. on 11.5.96 during which time he found various symptoms as noted by him in Ex.P.10 the postmortem certificate. Ex.P.6 is the dying declaration recorded by P.W.10. 5. P.W.12 is the doctor who did post-motem on the dead body of the Balakrishnan on receipt of Ex.P.9, the requisition for the same. he commenced postmortem at 6.00 a.m. on 11.5.96 during which time he found various symptoms as noted by him in Ex.P.10 the postmortem certificate. The symptoms noted by him are as hereunder: “External Examination: Eye lids closed. Tongue inside buccal cavity D.F.8/8. 8/8 extensive burns ulcer seen over the frontal region, face, front and back of chest, abdomen, both upper limbs and both lower limbs upto knee. Internal Examination: Thorax No fracture ribs, Hyoid bone intact, Heart congested. Lungs congested. Exvdes, Frothy Fluid on sqeezing abdomen 100 ml of peritoneal avid present. Stomach: Liver, Spleen, Kidneys, Small and Large Intestines are congested, bladder congested with about 50 ml. of urine. Skull: No injury to skull or fracture (NC) of vertebrae. Brain: Congested and firm.” The doctor is of the opinion that death is due to septic shock septicamia and internal haemorrhage in the organs and death would have occurred about 12 to 18 hours prior to autopsy. P.W.13 is the Inspector of police in All Women Police Station at Rajapalayam. At 10.00 a.m. on 4.1.1996 the accused appeared before her and gave a complaint, which she registered in Petition No.2/96; Ex.P.11 is the said petition. On that petition, she sent for the deceased in this case/husband of the accused to appear on or before 9.1.1996. On that day Balakrishnan, since deceased, did not appear and there fore, she sent a constable to get him. Even then, he did not come and enquiry showed that he had gone to Kerala. Since Vijayalakshmi/informant in that complaint, de facto complaint told that on return of her husband enquiry can be continued, P.W.13 recorded her statement, which is Ex-12. This is attested by Manoranjitham, mother of Vijayalakshmi. P.W.14 witnesesed the arrest of the accused and recording her confession statement, the admissible portion of which is Ex.P.13. He also witnessed the recovery of M.O.4 under Ex.P.14. P.W.16 arrested the accused and examined her as spoken to by P.W.14. Then he sent her for judicial remand. By examining P.W.13, he collected Exs.P.11 and P.12 from her. He sent the case properties to the Court. After completing all the legal formalities he filed the final report in Court against the accused on 25.7.1996. P.W.16 arrested the accused and examined her as spoken to by P.W.14. Then he sent her for judicial remand. By examining P.W.13, he collected Exs.P.11 and P.12 from her. He sent the case properties to the Court. After completing all the legal formalities he filed the final report in Court against the accused on 25.7.1996. When the accused was questioned under Section 313 Cr.P.C. on the basis of the incriminating materials made available against her, she denied each and every circumstance put up against her as false and contrary to facts. She had also stated at the end of her questioning that her husband under the influence of alcohol, though always affectionate, used to beat her, on the occurrence day also, he beat her and in the course of such beating, he thrashed her on the wall and she became unconscious. When she regained she found her husband in flames and she attempted to save him, but her husband requested her to take care of her children. There was none in the house at that time. He wanted water to drink and she and P.W.2 gave water to him. Then neighbours came and her husband ran away. At about 10.00 a.m. she went to the Hospital to see her husband and she is not guilty. 6. Mohideen Basha, learned counsel appearing for the appellant would submit that since all the witnesses examined, namely, P.Ws.2 to 6 to speak about the occurrence, have turned hostile, the entire case of the prosecution rests upon. Ex.P.1, the complaint given by the deceased himself while he was alive before the Police and Ex.P.6, the dying declaration recorded by P.W.10, Tahsildar. Learned counsel would request us to disbelieve both the dying declarations. He would then submit that assuming both the dying declarations are admissible in evidence, reliable and can be looked into, yet this Court may consider the contents of Exs.P.11 and P.12 also in the context of the dying declaration and then hold that the act of the accused would not come under Section 302 I.P.C. but only under Exception I to Section 300 I.P.C. Ex.P.11 would show that her husband, since deceased, was making sexual advances to their young daughter aged about 5 and that complaint had come to be given four months prior to the occurrence. P.W.13 had been examined to prove giving such a complaint and the steps taken by her to send for her husband for the purpose of enquiry. Therefore, the submission is, reading Exs.P.1 and P.6, in the context of Ex.P.11 and P.12, the Court can safely conclude that the accused in this case had been subjected to provocation over a long time by her husband and the day had reached on which she burst on her seams resulting in the occurrence. We heard the Additional Public Prosecutor on the above points. 7. Let us examine the merits of the prosecution case. The fact remains established that Balakrishnan died due to burn injuries and death had occurred three days after the incident. He had suffered burn injuries in his house. The prosecution by relying upon Exs.P.1 and P.6 would contend that in those two statements, the deceased, while alive, had implicated his wife/accused as the person responsible for pouring kerosene and then setting fire to him. We perused Exs.P.1 and P.6. Even in those two documents, it is clear that for one reason or the other, the spouses were quarrelling. In fact, in Ex.P.6, recorded by P.W.10, Tahsildar, Balakrishnan, while alive, admitted that over a long period, he was having quarrel with his wife. What exactly is the quarrel, we do not get any clear material from those two statements. However, in Ex.P.1, there is some material, namely, the accused was not happy with the earnings of her husband and in that context, there was a quarrel. As rightly contended by the learned counsel for the appellant, P.W.2 to P.W.6 examined to prove the occurrence, turned hostile. The rest of the witnesses are not eye witnesses to the occurrence. As we have already stated, four months prior to the occurrence, the accused in this case gave a complaint to P.W.13, the Inspector of Police, All Women Police Station. Her evidence shows that she did her best to send for Balakrishnan since deceased, and enquire him in the context of the complaint, but she failed since by that time, Balakrishnan had left for Kerala. The fact remains established that the accused in this case given the complaint, Ex.P.11 to P.W.13. We perused Ex.P.11 and in that we find that the present accused had accused her husband of sexual misbehaviour with her young daughter. The fact remains established that the accused in this case given the complaint, Ex.P.11 to P.W.13. We perused Ex.P.11 and in that we find that the present accused had accused her husband of sexual misbehaviour with her young daughter. Ex.P.12 is the statement given by her where she has categorically stated that her husband had made sexual advances to her young daughter aged 5 years and often used to force her to take liquor. Her consistent case is that her husband used to take liquor and under its influence he used to beat her. On a careful perusal of Exs.P.11 and P.12, it is not possible for us to brush aside from our consideration the contents thereof. If P.W.13 had completed the investigation on Ex.P.11 and filed an appropriate final report, the Court would have been in a position to know what exactly is the outcome of such investigation. It appears from Ex.P.12 that the accused in the present case was magnanimous to request the police to defer the investigation till her husband returns from Kerala, and probably, she is the cause for P.W.13 not to investigate the complaint fully and then filing the final report. In any event as already stated, there is some material available in Exs.P.11 and P.12 about the attempt of sexual misadventure of her husband with her daughter, aged about 5 years. If that is so, how much it could have been working in her mind, namely, the mother of the young child cannot be easily visualised. We have already started this case by saying that it is an unfortunate case of wife setting fire to her husband and killing him. The contents of Ex.p.11 and P.12 passes through our mind at every stage to probe further as to why the accused would have conducted herself in murdering her husband in the manner spoken to by the prosecution. The only conclusion that, our mind can reach on the noted facts is that the misadventure of her husband extending sexual advances to his young daughter would have been staying in the mind of the accused for all the time to come and only in that context, she could have set fire to her husband as spoken to by her husband himself in Exs.P.1 and P.6. This court right from the judgment reported in Suyambukkani v. State of Tamil Nadu 1989 L.W. Crl. This court right from the judgment reported in Suyambukkani v. State of Tamil Nadu 1989 L.W. Crl. 86 had been extending the concept of sudden provocation as enumerated in Exception I to Section 300 I.P.C. to sustained provocation as well. That Judgment had been consistently followed by this Court in a number of subsequent judgments. Therefore, the concept of sudden provocation includes sustained provocation, though sustained provocation is not an enumerated ground in Exception I to Section 300 I.P.C. is the settled position in law as far as this Court is concerned. Therefore, we view this case from the contents of Exs.P.11 and P.12 and the possibility of the accused having sustained provocation in her mind, for the reasons referred to above, cannot be totally lost sight of. In these circumstances, we hold that, the accused in all probability could have committed the crime in the context of sustained provocation, to which she stood exposed all the time based on the contents of Ex.P.11 and P.12. Therefore, holding that the benefit of Exception I to Section 300 I.P.C. is available to be given to the accused in this case, while confirming the judgment under challenge, we set aside her conviction under Section 302 I.P.C. and instead hold her guilty under Section 304, Part I, I.P.C. Intention to murder is writ large in her act, namely when she poured kerosene and set fire to her husband and it cannot be anything other than an intention to kill her husband. This means, her act would definitely come under Section 304 Part I I.P.C. We applied our mind to the appropriate sentence which could be given to her for such act. P.W.2, her daughter who was alleged to be the target to sexual misadventure by her father, the deceased in this case, is aged about 8 years on 26.8.1997, when she was examined in Court. Therefore, by this time, she would have attained her age and may be ready for her marriage as well. Therefore her mothers presence by her side would be in the best interest of said child herself. Therefore, we had decided to sentence her to undergo R.I. for five years only. Fine amount is retained. 8. This appeal is disposed of with the above notification in conviction and sentence. Any sentence already undergone by her, would be set off. Therefore her mothers presence by her side would be in the best interest of said child herself. Therefore, we had decided to sentence her to undergo R.I. for five years only. Fine amount is retained. 8. This appeal is disposed of with the above notification in conviction and sentence. Any sentence already undergone by her, would be set off. Bail bonds, if any, executed by her shall stand terminated forthwith. The Court of Sessions is directed to take steps to secure the presence of the accused and remit her to the prison to serve the rest of the imprisonment.