Judgment :- M. Jeyapaul, J. There are totally three accused in this case. The accused Azhagan alone faced the trial for an offence under Section 302 of the Indian Penal Code before the Principal Sessions Court, Erode and received a verdict of conviction and was sentenced to undergo life imprisonment. The other two accused were found to be juveniles and therefore they have been sent to the Juvenile Court to face the trial. 2. The charge is that on 7. 2002 at about 8.00 p.m. the appellant along with two other minor accused, with an intention to cause the death of Duraiyan, attacked him with billhook and caused his instantaneous death and thereby the appellant committed the offence punishable under Section 302 of the Indian Penal code. On the side of the prosecution, as many as seventeen witnesses were examined besides marking nineteen documents and twenty material objects. 2. The sum and substance of the prosecution case as reflected from the testimony of the prosecution witnesses is as follows:- The accused Azhagan lived with his wife Perumayee at Bejility. The deceased Duraiyan lived with his family at Elachiampalayam. About six months prior to the occurrence, Perumayee had developed extra marital relationship with deceased Duraiyan. On account of such illicit relationship, frequent quarrels erupted in the family of the accused, as a result of which, Perumayee used to go often to his parental house at Eppathampalayam. 3. Mallesan - P.W.1, Nagammal - P.W.3, Chikkannan - P.W.4, Madhan @ Madhappan -P.W.5 and Sadhasivam - P.W.6 have spoken to the aforesaid extra marital relationship of Perumayee with Duraiyan. 4. On 7. 2002 at about 7.30 p.m. Duraiyan informed his wife Nagammal, P.W.3 that he had a proposal to go over to Eppathampalayam. She protested and asked her husband not to go over to Eppathampalayam. Despite her protest, Duraiyan proceeded to Eppathampalayam. Mallesan, P.W.1 is the brother of deceased Duraiyan. P.W.3 informed P.W.1 about the proposed trip of Duraiyan and asked him to follow Duraiyan to Eppathampalayam. 5. P.W.1 having got a torch-light from P.W.3 went to Eppathampalayam. He spotted the appellant along with other minor accused Kiriyan and Madhevan behind a tree. The appellant herein started attacking on the head and neck of Duraiyan with a billhook. The minor accused Madhevan also attacked the deceased with a club, M.O.2. Kiriyan also attacked him with a club, M.O.3. P.W.1 having got a torch-light from P.W.3 went to Eppathampalayam. He spotted the appellant along with other minor accused Kiriyan and Madhevan behind a tree. The appellant herein started attacking on the head and neck of Duraiyan with a billhook. The minor accused Madhevan also attacked the deceased with a club, M.O.2. Kiriyan also attacked him with a club, M.O.3. On seeing the occurrence P.W.1 shouted for help. The appellant having threatened P.W.1 with dire consequences sped away from the scene of occurrence along with the other minor accused. P.W.1 went near his brother Duraiyan and found that he breathed his last. Thereafter he having entrusted the dead body of Duraiyan to the parents of Perumayee, came down to his Village at about 12.00 mid night and informed P.W.3 of the occurrence. On account of wild elephants movements, he could not go to the police station in the mid of night. 6. On 17. 2002 at about 8.00 a.m. Sannappan, P.W.2 came to the house of P.W.1. P.W.1 with the help of P.W.2 drafted the complaint Ex.P.1 and proceeded to Bargur Police Station and submitted the report Ex.P.1 to the Sub Inspector of Police -Ponnusamy, P.W.16. P.W.16 having received Ex.P.1 from P.W.1 registered a case in Crime No.12 of 2002 under Section 302 of the Indian Penal Code. He prepared the printed First Information Report Ex.P.17 and despatched the same to the learned Judicial Magistrate. 7. At about 4.30 p.m. on the said day, the Inspector of Police, Mr.K.Gopalsamy -P.W.17 took up the case for investigation. He reached the scene of occurrence at 6.30 p.m. on the said day and prepared Observation Mahazar Ex.P.4 in the presence of Ganesan, P.W.11. He drew the rough sketch Ex.P.18 reflecting the scene of occurrence with the help of Babu, P.W.13. Photographs, M.O.15 series were taken. The negatives thereof have been marked as M.O.16 series. Between 7.00 p.m. and 9.00 p.m. on the said day, he held inquest on the dead body of Duraiyan in the presence of Panchayatdars and witnesses and prepared inquest report Ex.P.19. 8. Sadhasivam, P.W.6 would speak to the fact that he went along with other panchayatdars to secure the wife of the accused. After conciliation, she was brought to the house of the accused. But quite unfortunately, she had again left for her parental house after picking up quarrel with the accused. 8. Sadhasivam, P.W.6 would speak to the fact that he went along with other panchayatdars to secure the wife of the accused. After conciliation, she was brought to the house of the accused. But quite unfortunately, she had again left for her parental house after picking up quarrel with the accused. Madhan @ Madhappan, P.W.5 would state that the appellant as well as the other minor accused Madhevan and Kiriyan had openly deliberated to cause the death of Duraiyan. Rajammal, P.W.8 would depose that she saw the appellant along with other minor accused going towards Eppathampalayam. Chinnathambi - P.W.9 is working as a noon-meal organiser at Kalvarai School. The appellant, who was found in the school informed him that he would vacate the School after a brief stay during night. Bommaiyan @ Sivappa, P.W.10 has deposed before the Trial Court that the accused informed him, when he was standing to board a bus at Erode bus-stand that he had already committed the murder of Duraiyan. 9. Dr. Devaraj, P.W.7 commenced post-mortem on the dead body of Duraiyan at 11.30 a.m. on 17. 2002 on receipt of the requisition from the Inspector of Police P.W.17 through the post-mortem constable -Jayavel, P.W.14. He found the following injuries, internal and external and the other symptoms on the dead body of Devaraj. "Injuries:- 1) A lacerated injury 6 cm in length 1 cm x breath x bone deep over left parietal area of scalp. 2) Lacerated injury 4 cm x 1/2 cm x bone deep upper frontal area of scalp. 3) A circular, round cut injury 8 cm in diameter regular edges -2.5 cm deep over left side neck exposing muscles, blood vessels and nerves with pooling of clotted blood seen. 4) Abrasion 3 x 2 cm over left wrist. 5) Abrasin 2 x 2 cm - base of left ring finger. 6) Abrasion 5 cm in diameter on middle of right leg below knee. 7) A cut injury 1/2 cm diameter with clear regular edges 1 cm deep over the right shoulder above right scapula. On Dissection : Injury No.1 Simple fracture of left parietal bone 4 cm diameter with no displacement of fractured segments. 2) Injury No.2 No fracture skull seen. 3) Injury No.3 left side neck sterno mastoid muscle is cut. Carotid artery is layered with pooling of blood clots seen. External Jugular vein is also cut. On Dissection : Injury No.1 Simple fracture of left parietal bone 4 cm diameter with no displacement of fractured segments. 2) Injury No.2 No fracture skull seen. 3) Injury No.3 left side neck sterno mastoid muscle is cut. Carotid artery is layered with pooling of blood clots seen. External Jugular vein is also cut. Abdomen: Opened with around and gushing of AIR Thorax: No fracture Ribs. Heart: 200 gms chambers empty. Lungs: right 450 gms Pale. Spleen: 150 gms pale. Kidneys: both 130 gms. Intestine : appear distended. Bladder: Empty. Pelvis: no fracture. Generative organ: Normal. Brain: 1300 gms pale. Spinal Column: No fracture seen. Blood sample preserved." He opined in the Post-mortem Certificate, Ex.P.3 that the deceased appear to have died of shock and haemorrhage due to multiple injuries 36 to 48 hours prior to autopsy. 10. Jayavel, P.W.14 recovered Cement Colour Shirt, M.O.17, Lungi, M.O.18, inner wear, M.O.19 and waist cord, M.O.20 from the dead body of Duraiyan, after the postmortem examination was over and entrusted the same to the Inspector of Police, P.W.17 along with the special report Ex.P.10. 11. On 17. 2202 at about 8.30 p.m, the appellant as well as the other two minor accused were arrested in the presence of Muthu alias Muthappa, P.W.12. On the basis of the admissible portion of Ex.P.6, the confession statement of the appellant, billhook, M.O.1, red colour polyester shirt, M.O.8, black colour cotton lungi, M.O.9, full hand shirt, M.O.10, another lungi, M.O.11 and the club, M.O.2 were recovered under relevant seizure mahazar Ex.P.7. 12. The accused were remanded to judicial custody. The material objects also were submitted to the court for chemical examination. 13. Jagadeesan, P.W.15 served as a Head Clerk in the Judicial Magistrates court, Bhavani. He received the requisition Ex.P.11 from P.W.17 for sending the material objects for chemical examination. With a covering letter Ex.P.12, the material objects were despatched to the chemical examiner for examination. The Chemical Examiners Report, Biology Report and Serology Reports were marked as Exs.P.13, P.14, P.15 and P.16. 14. Having completed the investigation in this matter, P.W.17 laid the final report as against the appellant for offences under sections 302 and 302 read with 109 of the Indian Penal Code. 15. The Chemical Examiners Report, Biology Report and Serology Reports were marked as Exs.P.13, P.14, P.15 and P.16. 14. Having completed the investigation in this matter, P.W.17 laid the final report as against the appellant for offences under sections 302 and 302 read with 109 of the Indian Penal Code. 15. The incriminating circumstances spoken to by the witnesses examined on the side of the prosecution were put to the accused to respond under Section 313 of the Code of Criminal Procedure. Total denial of the charge of murder is the defence set up by the accused. 16. Neither oral nor documentary evidence was let in on the side of the defence. The learned Principal Sessions Judge, Erode having relied upon the ocular testimony of P.W.1 in the background of the motive portion of the case, which was established by the prosecution and the medical evidence available on record, has come to the conclusion that the accused committed the murder punishable under Section 302 of the Indian Penal Code. 17. Learned counsel for the appellant would submit referring to the testimony of P.W.1 and P.W.3 that Mallesan, P.W.1 would not have witnessed the occurrence, as he had gone to the scene of occurrence, as per the version of P.W.3, only after Duraiyan had left for Eppathampalayam. The prosecution had come out with an artificial version that P.W.5 overheard the accused/the appellant discussing with the minor accused about the crime to be committed. The evidence of Chinnathambi, P.W.9 does not in any way help the case of the prosecution. It is his further submission that the testimony of Bommaiyan @ Sivappa, P.W.10 that the appellant confessed to have committed the crime of Duraiyan is found to be against normal human conduct. Though the prosecution could establish that Duraiyan had died on account of homicidal violence, the prosecution failed to bring home the guilt to the accused from the evidence available on record. We heard the submissions made by the learned Additional Public Prosecutor with regard to the aforesaid points raised by the learned counsel for the appellant. 18. Coming to the motive portion of the prosecution case, we find that there is voluminous evidence on the side of the prosecution to establish the motive behind the murder. We heard the submissions made by the learned Additional Public Prosecutor with regard to the aforesaid points raised by the learned counsel for the appellant. 18. Coming to the motive portion of the prosecution case, we find that there is voluminous evidence on the side of the prosecution to establish the motive behind the murder. Mallappan, P.W.1, who is the brother of the deceased and Nagammal, P.W.3, who is the widow of the deceased have spoken to the extra marital relationship the wife of the accused had developed with the deceased. That apart we find from the testimony of Chikkannan, P.W.4 and Sadhasivam, P.W.6 that the accused was completely aggrieved of the illicit relationship, the deceased had developed with his wife. There is no reason to reject the testimony of P.W.6, who would state that he went along with other Panchayatdars to bring down the wife of the accused to her matrimonial home. It is his further version that the wife of the accused had left for her parental home, having picked up quarrel with the accused, within few days. He has also categorically spoken to the extra marital relationship the wife of the accused had with the deceased. Considering the evidence galore available on record, we come to the conclusion that the appellant had been afflicted with the motive to cause the death of deceased Duraiyan. 19. Of course, Mallesan, P.W.1 is none other than the brother of the deceased. His testimony is completely corroborated by the evidence of Nagammal, P.W.3. Though Mallesan had not accompanied during earlier occasions, the deceased to Eppathampalayam, he had gone to Eppathampalayam following the deceased at the request of Nagammal, P.W.3. The distance between the village of P.W.1 and the occurrence place is only about 2 kms. P.W.1 having taken a torch light from P.W.3 had shadowed the deceased, suspecting some danger to the life of the deceased on account of the relationship he had developed with the wife of the accused. It is his categorical version that when he was approaching the Village Eppathampalayam, the appellant along with other two minor accused were found hidden behind a tree. The appellant suddenly pounced on the deceased and started attacking the deceased with the billhook, M.O.1 on the neck and head indiscriminately, he deposes. 20. It is his categorical version that when he was approaching the Village Eppathampalayam, the appellant along with other two minor accused were found hidden behind a tree. The appellant suddenly pounced on the deceased and started attacking the deceased with the billhook, M.O.1 on the neck and head indiscriminately, he deposes. 20. As the accused had got grievance over the illicit relationship Duraiyan had with his wife, we find that it is quite natural for the brother of the deceased to follow him apprehending danger to his life. Though the occurrence is said to have taken place at 8.00 p.m. on 7. 2002 P.W.1 had come back home only at 12.00 mid night on the said day. The First Information Report was prepared only at 8.00 a.m., on the next day morning and it was submitted to the Sub Inspector of Police, P.W.16 only at 3.00 p.m. on 17. 2002. On a careful perusal of the testimony of P.W.1 we find that the villages concerned are found located in a hilly terrain. On account of threat of wild animals, P.W.1 had not gone to the police station in the mid of night, he had deposed before the Court. P.W.1 had to seek the assistance of a literate man P.W.2 to scribe the report. The evidence let on the side of the prosecution, reveals that Eppathampalayam Village is located 15 kms away from Bargur. P.W.1 had to take the bus and reach the police station. Though there was some delay in lodging the report, considering the location of the villages concerned and the threat of wild animals spoken to by the witnesses, we find that the delay in lodging the report has been properly explained by the prosecution. P.W.3 has corroborated the version of P.W.1 to the effect that it was she, who sent P.W.1 fearing some danger to her husband, to shadow the deceased. She would also state that P.W.1 had come back during mid-night and informed about the murder of her husband. 21. P.W.5 has deposed to the fact that the appellant had some discussion with the minor accused about their plan to murder deceased Duraiyan. As rightly pointed out by the learned counsel for the appellant, we find that the testimony of P.W.5 is found to be totally artificial. Therefore we are not inclined to accept the testimony of P.W.5. 21. P.W.5 has deposed to the fact that the appellant had some discussion with the minor accused about their plan to murder deceased Duraiyan. As rightly pointed out by the learned counsel for the appellant, we find that the testimony of P.W.5 is found to be totally artificial. Therefore we are not inclined to accept the testimony of P.W.5. Rajammal, P.W.8 has spoken to the fact that she spotted the accused along with the two minors going to the village. There is no reason to reject the said testimony of the independent witness Rajammal, P.W.8. Chinnathambi, P.W.9, who served as a noon-meal organiser at Kalvarai has spotted at 12.00 mid-night on 7. 2002 not only the appellant but also the other two minors. The evidence of P.Ws.8 and 9 would clearly establish that the accused had gone to Eppathampalayam at the relevant point of time and returned immediately after the occurrence was over. 22. The post-mortem Doctor has described as many as seven injuries found on the dead body of Duraiyan. As spoken to by P.W.1, the accused had attempted on the head and neck of the deceased. The Post-mortem Doctor has deposed to the fact that the injuries are sufficient to cause the death of the deceased. 23. The prosecution has also examined Muthu @ Muthappa, P.W.12 to speak about the arrest of the appellant and the recovery of the weapon of offence. The prosecution has established beyond reasonable doubt that it was the accused, who has caused the death of Duraiyan at about 8.00 p.m. on 7. 2002. 24. It is submitted by the learned counsel for the appellant that the evidence available on record would show that the accused had caused the death of Duraiyan only on account of the sustained provocation, he encountered on account of the illicit relationship, the deceased had developed with his wife. We find considerable force in the submission made by the learned counsel for the appellant. The consistent version of the witnesses examined on the side of the prosecution namely P.Ws.1,3,4 and 6 would disclose that the motive for the murder is only the illicit intimacy the deceased had developed with the wife of the accused. In spite of the advice given by P.Ws.1 and 3, the deceased had continued his illicit intimacy with the wife of the accused. In spite of the advice given by P.Ws.1 and 3, the deceased had continued his illicit intimacy with the wife of the accused. Such a lustful conduct had sufficiently provoked him and the provocation had been sustained till the occurrence day. 25. We find from the evidence available on record that the appellant, who had been sufficiently provoked on account of the illicit intimacy the deceased had developed with his wife, had caused the death of the deceased Duraiyan. The murder has been committed by the accused on account of the sustained provocation provided by the deceased consistently for about six long months. Better sense had never prevailed on the deceased. Therefore without any hesitation, we come to the conclusion that the act of the accused squarely falls under Exception (i) to Section 300 of the Indian Penal Code. But the evidence available would establish that he had intended to cause the death of the deceased. 26. For the foregoing reasons, we set aside the conviction and sentence recorded under Section 302 of the Indian Penal Code and instead we convict the accused for offence under Section 304(i) of the Indian Penal Code and sentence him to undergo seven years rigorous imprisonment. The appeal is disposed of accordingly.