Judgment : Per S. R. SINGHARAVELU, J. 1. Challenging the Judgment of conviction and sentence imposed on the appellant / accused by the learned Principal Sessions Judge, Ramanathapuram in S.C.No. 153 of 1998 dated 17.11.1999, in convicting the accused for an offence under Section 302, 341 and 506 (ii) I.P.C. and sentencing him to undergo life imprisonment and to pay a fine of Rs.5,000/- and in default to undergo 6 months rigorous imprisonment for the offence under Section 302 I.P.C., the present appeal has been preferred. No separate sentence has been awarded for the offence under Sections 341 and 506 (ii) I.P.C.. 2. The brief facts of the prosecution case are as follows: (a) The deceased Karuppaiah was said to have illicit intimacy with Kanagavalli, the wife of the appellant/accused. This is the motive for the occurrence that happened at 6.00 p.m. on 22.2.1998 which was reported under Ex.P.1 by Chandran [P.W.1] to Ramamoorthy [P.W.10], the Inspector of Police at 8.30 p.m. the printed copy of the First Information Report is Ex.P.13 and that reached the Court concerned at 5.15 a.m. on the next day, i. e. 23.02.1998. Chandran [P.W.1] and Sathiah [P.W.2] arethe distant relatives of the deceased. Uthayakumar [P.W.3] is the son of the deceased. (b) P.Ws. 1 and 2 are the eyewitnesses to the occurrence. Although in Ex.P.1 Chandran [P.W.1] had only mentioned the gist of the occurrence by saying that he saw the accused thrice cutting over the backside of the head and the injured died at the spot. But, in the course of the evidence, he has detailed each and every overt act on the part of the accused. The occurrence has taken place while the deceased was going in the Modukulathu - Uthirakosamangal Road. P.W.1 was going along with deceased and at that time, the accused came from the opposite side and when they were at a distance of 10 feet away from each other, accused began to mount attack upon the deceased. He has cut all over the body including the neck position of the deceased. The weapon used was aruval. P.Ws. 1 and 2 made an alarm and tried to prevent the attack. But the accused had threatened them and also apprehending attack over them, P.Ws.1 and 2 did not to anything and after completing the attack on the deceased, the accused ran away from the scene of occurrence. The weapon used was aruval. P.Ws. 1 and 2 made an alarm and tried to prevent the attack. But the accused had threatened them and also apprehending attack over them, P.Ws.1 and 2 did not to anything and after completing the attack on the deceased, the accused ran away from the scene of occurrence. This aspect was spoken to by both P.Ws. 1 and 2. (c) Immediately they have gone to South Mallal hamlet to meet Raman and Karuppaiah at 6.30 p.m. Again they came to the scene of occurrence at 6.45 p.m. Then they thought it fit to inform the family members of the deceased and gone to the North mallal Village at 7.00 p.m. The wife, son and the daughter of deceased along with P.Ws. 1 and 2 have gone to the respondent Police Station in order to lodge a complaint, under Ex.P.1 to P.W. 10 -Ramamoorthy, the Inspector of Police, upon receiving the complaint, registered a case in crime No. 17 of 1998 under Section 302 I.P.C. and sent Ex.P.13 printed First Information Report to the Court concerned. (d) P.W.10 the Investigating Officer has taken up the investigation and visited the scene of occurrence at 9.30 p.m. on 22.02.1998, prepared Ex.P.2 - Observation Mahazar and drawn Ex.P.14 rough sketch in the presence of witnesses and held inquest upon the dead body of the deceased through Ex.P.15 -Inquest Report. He also recovered blood stained stone, sample earth and blood stained earth under the cover of mahazar. The body was sent for postmortem. (e) P.W.7 - Dr. R. Rathinam, attached to Ramanathapuram Government Hospital conducted autopsy on the dead body of the deceased on 23.02.1998 at 12.05 p.m. and found the following external injuries in Ex.P.-10 Postmortem Certificate:- “EXTERNAL INJURIES”: TABLE The doctor had opined that the deceased would appear to have died of shock and haemorrhage and multiple injuries. (f) The arrest of the accused was made at 2.00 p.m. on 24.02.1998 and his confession was recorded, the admissible portion of which was marked as Ex.P.4 in pursuance of which M.O.3 aruval was recovered through Ex.P.5 - Mahazar. The recovered articles were net for chemical analysis which resulted in two reports. viz. Exs. P.6 and 7 -Chemical analyst Report and Serologist Report respectively. Upon examining the witnesses and after completion of the investigation, final report against the accused was laid on 31.03.1998 by the Investigating Officers. 3. The recovered articles were net for chemical analysis which resulted in two reports. viz. Exs. P.6 and 7 -Chemical analyst Report and Serologist Report respectively. Upon examining the witnesses and after completion of the investigation, final report against the accused was laid on 31.03.1998 by the Investigating Officers. 3. The accused was questioned under Section 313 of Cr. P.C. as to the incriminating circumstances found against him. He denied the offence and pleaded ignorance. 4. Before the Trial Judge, 10 witnesses were examined, 15 exhibits were marked and 5 material objects were produced. On considering the oral and documentary evidence, the Trial Judge has found the accused guilty under Sections 302, 341 and 506 (ii) I.P.C. and awarded the sentence as stated supra. 5. We have heard Mr. S. Shanmugavela-yutham, learned Senior counsel appearing for the appellant and Mr. M. Daniel Manoharan, learned Additional Public Prosecutor appearing for the State. 6. The unfortunate event of killing the paramour of the wife of the accused had happened at 6.00 p.m. on 22.2.1998 in the road between Mudukulathu and Uthirakosamangai. There is no delay in the F.I.R. and that was well spoken to by P.Ws. 1 and 2 that in between 6.00 p.m. and 8.30 p.m. i. e. between the time of occurrence and time of lodging the F.I.R. They happened to go to South Mallal hamlet near the occurrence place to see Raman and Karuppaiah, then came back to scene of occurrence and then they thought it fit to inform the family members of the deceased and therefore visited North Mallal at 7.00 p.m. and then, after coming along with the wife, son and daughter of the deceased to the scene of occurrences P.Ws. 1 and 2 have preferred to go to the Police Station which is 4 kilometres away from the scene of occurrence and thus, the delay was well explained. The copy of the printed F.I.R. had also reached the concerned learned Judicial Magistrate at 5.15 a.m. on 23.02.1998. Thus, we find no delay in the First Information Report. 7. So far as the overt acts are concerned, the non mentioning of each and every overt act in Ex.P.1 is not fatal to the prosecution as the F.I.R. is supposed to communicate only the gist of the offence and sometimes, on their own anxiety the informant may vividly narrate about the occurrence. But, in this case both P.Ws. 7. So far as the overt acts are concerned, the non mentioning of each and every overt act in Ex.P.1 is not fatal to the prosecution as the F.I.R. is supposed to communicate only the gist of the offence and sometimes, on their own anxiety the informant may vividly narrate about the occurrence. But, in this case both P.Ws. 1 and 2 have categorically described about the overt acts of the accused and the place of occurrence. After all, P.W.1 had gone along with deceased and therefore, he could see the occurrence. There is nothing to disbelieve the evidence of P.Ws. 1 and 2. 8. Learned counsel for the appellant submitted that thee was long standing enmity between accused and the deceased as accused was with a mental agony after knowing that his wife had been illicitly contacted by the deceased Karuppaiah. P.Ws. 1 and 2 had spoken to the fact that there was some trouble in the family of the accused and as karuppaiahs intervention was not liked by the accused, there was enmity between them. But, a detailed information is let in the confession statement of the accused made during the time of recovery of M.O.3. Although the portion of confession leading to the recovery is admissible, when some factors are found favouring accused, law permits to consider the same and not being contra to the prosecution case. In the course of such statement, the accused has vividly described the illicit intimacy between his wife and the deceased and he said that his wife could not be controlled and therefore, as the accused/husband was also having a provocative factor in his favour and that provocation did not burst until the time of the occurrence. On the one hand, the husband/accused was trying to correct the wife, on the other hand, he was feeling ill-will upon the undue act of the deceased. Such was the long standing mental attitude of the accused. He could not do anything against the deceased. But, as said in his confession at 5.00 p.m. on the day of occurrence, just an hour prior to the occurrence, he was attacked by the deceased with chappal. Therefore, the sustained provocation emanated out and made the accused to commit the offence, of course, with intention to cause death. 9. He could not do anything against the deceased. But, as said in his confession at 5.00 p.m. on the day of occurrence, just an hour prior to the occurrence, he was attacked by the deceased with chappal. Therefore, the sustained provocation emanated out and made the accused to commit the offence, of course, with intention to cause death. 9. In these circumstances it is also to be seen that nothing against the illicit intimacy was spoken to by any other witnesses examined on the side of the prosecution. Therefore, this is a fit case where exception (1) of Section 300 I.P.C. shall be applied. The accused was deprived of the power of self control by sustained provocation which proved into grave and sudden provocation by receiving chappal beat at the hands of the deceased and therefore, caused the death of the person who gave the provocation and that provocations is sought or voluntary provoked. 10. Hence the conviction and sentence imposed on the appellant/accused by the Trial Court is set aside and instead, he is convicted for the offence under Section 304 [1] I.P.C. and sentenced to undergo 7 years rigorous imprisonment. The period already undergone shall be given set off. 11. In the result, the criminal appeal is partly allowed. 12. It is reported that the accused is on bail. The Sessions Judge concerned is directed to take steps to secure the presence of the accused and commit him in prison to undergo the remaining period of sentence.