JUDGMENT :- P.D. Dinakaran, J. The accused in Sessions Case No.35 of 2005 on the file of the learned Principal District and Sessions Judge, Coimbatore, having been convicted for the offence punishable under Section 302 and sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- in default to undergo rigorous imprisonment for six months, with reference to an occurrence said to have taken place on 12. 2004 at 6.00 p.m. in front of the house of the accused at Karupparayan Nagar, viz., the accused caused the death of one Selvaraj, within the jurisdiction of the respondent police station, has preferred the above appeal. 2. As per the charge framed by the trial Court, it is alleged that the deceased Selvaraj was suspecting the fidelity of his second wife Karunaimmal, who is the younger sister of the accused and used to quarrel with his second wife and the accused frequently; that on 12. 2004, at 6.00 p.m. the deceased came to the house of the accused at Karupparayan Nagar and picked up quarrel; and that the accused with an intention to murder the deceased, went inside the hut, brought koduval and inflicted cut injuries on him and the deceased succumbed to the injuries and thereby committed an offence punishable under Section 302 I.P.C. 3. The brief case of the prosecution is as follows: (i) P.W.1, Purushothaman, is the Village Administrative Officer, to whom the accused gave Ex.P1, extra judicial confession. P.W.2 Lakshmi is the sister of the deceased. P.W.4 Govindammal is the first wife of the deceased. P.W.10 Karunaiammal, who is the younger sister of the accused, is the second wife of the deceased. (ii) P.W.10 was residing with the deceased for the past 7 years and gave birth to two children, Sangeetha 6 years and Chandran 4 years. The deceased came to the house of the accused three months prior to the occurrence and complained about P.W.10, doubting her fidelity and the accused replied him that he cannot interfere in the matter as she left long back and was living with the deceased. Again, one month prior to the occurrence, the deceased quarreled with the accused and the neighbours prevented him from attacking the accused and his family members. Again, one month prior to the occurrence, the deceased quarreled with the accused and the neighbours prevented him from attacking the accused and his family members. Three days prior to the occurrence, the accused went to Kallarpalayam for attending funeral rites of his relative and the deceased and P.W.10 also came, where he saw the deceased assaulting P.W.10, and the neighbours pacified them. Thereafter, on the fateful day, when the accused was sleeping in a cot, outside of his hut, the deceased came there, caught hold of his shirt and challenging that he cannot be big rowdy as the deceased, slapped him. On seeing the deceased beating accused, daughter of the accused, nine years old, intervened. The deceased questioned her whether she was born to her mother through the accused or some other person and slapped her. Got provoked by the action of the deceased, the accused went inside, took koduval and cut him on the left shoulder and after he fell down, he cut on the neck and the same was witnessed by neighbours. (iii) P.W.2 had stated that on 12. 2004 at 5.15 p.m. the deceased went to the house of the accused and complained him that the character of P.W.10 is not good and on account of that, both the deceased and the accused exchanged words and the daughter of the deceased intervened and the deceased pushed down her. Enraged over the act of the deceased, the accused went inside the hut, brought an aruval and cut on the neck and shoulder of the deceased. The deceased fell down and the accused left the place with the weapon. (iv) P.W.3, Anwar Raja, who is an independent witness, witnessed the occurrence and his evidence corroborates the evidence of P.W.2. v) After committing the crime, the accused went to the office of the Village Administrative Officer, P.W.1 and gave Ex.P1 extra judicial confession. (vi) P.W.1, Village Administrative Officer, had deposed that while he was in his office along with his menial on 12. 2004, the accused came with M.O.1 aruval, confessed that he had murdered the deceased and handed over M.O.1. He prepared Ex.P1 extra judicial confession and took him to the police station, where he lodged Ex.P2 complaint. (vi) P.W.1, Village Administrative Officer, had deposed that while he was in his office along with his menial on 12. 2004, the accused came with M.O.1 aruval, confessed that he had murdered the deceased and handed over M.O.1. He prepared Ex.P1 extra judicial confession and took him to the police station, where he lodged Ex.P2 complaint. (vii) P.W.8, the Sub Inspector of Police, Karamadai Police Station, based on Exs.P1 and P2, registered a case in Crime No.95 of 2004 for the offence punishable under Section 302 I.P.C., prepared First Information Report, Ex.P15 and recovered Koduval, M.O.1, under Mahazar, Ex.P3, in the presence of P.W.1 and his menial. He forwarded FIR to the Judicial Magistrate, Mettupalayam and its copies to the higher officials. (viii) P.W.9, Inspector of Police, on receipt of FIR, took up the case for investigation and seized bloodstained shirt, M.O.2 and bloodstained lungi, M.O.3 from the accused under Mahazar, Ex.P4 in the presence of P.W.1 and his menial. Thereafter, he took the accused and P.W.1 to the place of occurrence, where he prepared Observation Mahazar, Ex.P6 and Rough Sketch, Ex.P16 in the presence of P.W.1 and his menial. He conducted inquest over the body of the deceased in the presence of panchayatdars and prepared inquest report, Ex.P17. He caused the place of occurrence to be photographed and M.O.7 series are the photographs. He also seized bloodstained earth, M.O.4, sample earth, M.O.5 and bloodstained towel, M.O.6, under Mahazar, Ex.P5. He sent the body for post-mortem through Police Constable Loganathan along with requisition, Ex.P.13. He examined the witnesses and recorded their statements. (ix) P.W.6, Dr. Elanchelian, Medical Officer, Government Hospital, Mettupalayam, on receipt of Ex.P13 requisition, conducted autopsy over the body of the deceased and found the following injuries: "1. Laceration measuring 10x5x15cm front of the neck above lower border of the mandible below upper margin of hyoid left anterior border of the sternocleido mastoid muscle right posterior border of the sternocleido mastoid muscle. There was a tag of skin suspended from left margin corner. 2. Laceration measuring 2x1x0.5cm over scapular left region. 3. Laceration 0.5x0.25x0.25cm over left eyebrow. 4. Laceration 3x1x0.5xm in front of left ear. 5. Laceration measuring 2x0.5x0.5cm over upper part of left side of neck. Important structures of the neck carotid. Jugular, Larynx, above hyoid oesophagus all re transacted. Wound No.1 grievous injury." Ex.P14 is the Postmortem Certificate. 2. Laceration measuring 2x1x0.5cm over scapular left region. 3. Laceration 0.5x0.25x0.25cm over left eyebrow. 4. Laceration 3x1x0.5xm in front of left ear. 5. Laceration measuring 2x0.5x0.5cm over upper part of left side of neck. Important structures of the neck carotid. Jugular, Larynx, above hyoid oesophagus all re transacted. Wound No.1 grievous injury." Ex.P14 is the Postmortem Certificate. The Medical Officer opined that the death of the deceased is due to shock and haemorrhage due to injuries to the vital organs, major vessels, carotid, jugular and larynx and oesophagus 12 to 18 hours prior to autopsy. (x) P.W.9 recovered M.Os.8 to 12, clothing of the deceased under Mahazar Ex.P18. He sent the material objects along with requisition, Ex.P19 for subjecting the same to chemical analysis. xi) The District Munsif-cum-Judicial Magistrate, Mettupalayam, sent the material objects to the Chemical Analyst under letter Ex.P20 and received Chemical Analysis Report, Ex.P21 and Serologists Report Exs.P22 and 23. (xii) P.W.5, the learned Judicial Magistrate, Avinasi, on receipt of requisition, Ex.P7, forwarded by the Chief Judicial Magistrate, Coimbatore, recorded statements of P.W.1, Kurunthachalam, P.W.2, P.W.3, and Akbar Ali under Section 164 Cr.P.C. and Exs.P8 to 12 are the statements. (xiii) P.W.9, on completion of the investigation and on receipt of report and opinion from the Medical Officer, filed a final report against the accused for the offence punishable under Section 302 I.P.C. on 13. 2004. 4. When the accused was initially questioned, he pleaded not guilty and therefore, trial of the case was taken up and to prove the guilt of the accused, the prosecution examined P.Ws.1 to 10, marked Ex.P1 to P23 and produced Material Objects 1 to 12, as referred to above. 5. When the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found against him in the evidence of prosecution witnesses, he denied the same. Neither oral nor documentary evidence was adduced on the side of the defence. 6. The learned Principal District and Sessions Judge, Coimbatore, after perusing the materials produced, oral and documentary and after hearing the arguments advanced by both the sides, convicted and sentenced the appellant as aforementioned. Aggrieved by the same, the appellant filed the present appeal. 7. Learned counsel appearing for the appellant advanced his argument only for modification of the conviction and sentence relying on the circumstances of the case. Aggrieved by the same, the appellant filed the present appeal. 7. Learned counsel appearing for the appellant advanced his argument only for modification of the conviction and sentence relying on the circumstances of the case. According to him, the accused himself narrated the occurrence verbatim in Ex.P1, extra judicial confession made to P.W.1. The same has been spoken to by the eye witnesses, P.Ws.2 and 3. Even accepting the contention as put forth by the prosecution, it is the deceased who was continuously quarrelling with the accused and even on the date of occurrence, he came to the residence of the accused and assaulted him and his daughter, who intervened, and questioned her paternity. Such action of the deceased will provoke anybody and the accused lost the power of self-control and hence, the act of the accused would be culpable homicide not amounting to murder coming under Exception-1 to Section 300 I.P.C. 8. Concurring with the arguments advanced on behalf of the appellant, the learned Additional Public Prosecutor stated that it was the deceased, who went to the residence of the accused and indulged in quarrel with the accused and to substantiate the same a reference to the First Information Report and the deposition of prosecution witnesses referred to above is suffice. To buttress his argument he submitted that it was the deceased, who reached the residence of the accused and indulged in quarrel and under such circumstances, the offence under Section 302 I.P.C. may not be made out, as the deceased was the aggressor, who lead to the sudden provocation of the accused. In any event, he submitted that the accused has committed culpable homicide not amounting to murder. 9. We have perused the materials available on record and the oral submissions made by both sides. The point that arises for our consideration is whether the prosecution has proved the guilt of the accused beyond all reasonable doubt? 1. There were frequent quarrels between the deceased and his second wife, P.W.10. The deceased indulged in quarrel with her by alleging that the children born to P.W.10 were not born on account of his relationship with her, but with somebody else. As the accused is the brother of P.W.10, the deceased also indulged in quarrel with the accused. 1. There were frequent quarrels between the deceased and his second wife, P.W.10. The deceased indulged in quarrel with her by alleging that the children born to P.W.10 were not born on account of his relationship with her, but with somebody else. As the accused is the brother of P.W.10, the deceased also indulged in quarrel with the accused. Three months prior to the occurrence, the deceased indulged in quarrel with the accused complaining about P.W.10 that she is having contacts with several persons. The accused immediately told him that he can do whatever he wants, and there is no need to tell him. Even one month prior to the occurrence, the deceased quarreled with the accused and the neighbours prevented him from attacking the accused and his family members. Three days prior to the occurrence also, the deceased assaulted P.W.10 and the same was witnessed by the accused and other neighbours. 2. It is the version of the accused that he gave Ex.P1, extra judicial confession, stating that on 12. 2004 at about 6.00 p.m., when he was sleeping in front of his hut, the deceased, who came there, pulled him out by holding his shirt and stated that the accused can do nothing to him and slapped him on his cheek. The daughter of the accused, aged about 9 years at the time of occurrence, on hearing the noise, questioned the conduct of the deceased assaulting her father, for which the deceased also abused, assaulted and pushed her down by saying that she was not born to her father, but through somebody else. The accused, at that time, unable to tolerate the conduct of the deceased, lost his self control, went inside his residence, brought an aruval and caused injury on the shoulder and continued to deliver two more cuts after the deceased fell down. 3. While narrating the conduct of the deceased, it is stated that even a month ago, the deceased was quarrelling and abusing his second wife, P.W.10 and assaulted the accused and his family members. Even three days prior to the occurrence, the deceased assaulted P.W.10. Therefore, under such circumstances, it is stated that the accused is deprived of his power of self control and has committed the offence. This extra judicial confession, in the form of complaint given to VAO, corroborates the evidence eye witnesses, P.Ws.2 and 3 also. Even three days prior to the occurrence, the deceased assaulted P.W.10. Therefore, under such circumstances, it is stated that the accused is deprived of his power of self control and has committed the offence. This extra judicial confession, in the form of complaint given to VAO, corroborates the evidence eye witnesses, P.Ws.2 and 3 also. The motive behind the crime is spoken to by P.Ws.4 and 10, the wives of the deceased. 4. The occurrence took place in front of the residence of the accused. The accused was simply sleeping in front of his hut and it was the deceased, who went there, picked up quarrel, started assaulting by pulling the shirt of the accused. Furthermore, he challenged the accused and started assaulting. When the said act of the deceased was questioned by the daughter of the accused, aged about 9 years, she was also abused questioning her nascence and she was pushed down. Only under such circumstances, the accused deprived of his power of self control, took out an aruval, which was found in the hut, and attacked the deceased. 5. On a careful scrutiny of the occurrence, which has been narrated in the form of confession of the accused as well as through the evidence of P.Ws.2 and 3, we find that the deceased is the aggressor, who not only indulged in quarrel with P.W.10, who is the sister of the accused, but also his family members. Even on the date of occurrence, because of the activities of the deceased in assaulting and abusing the accused and his daughter, the accused, deprived of his self control, took out an aruval and caused injury on the deceased. 6. In view of the facts and circumstances of the case, we are of the considered view that the offence under Section 302 IPC is not made out. The inference that can be arrived based on the materials would depict that the act of the accused amounts to culpable homicide not amounting to murder, as the occurrence took place on the spur of moment, there is no premeditation on the part of the accused to commit the offence. The accused has caused such injuries only after the deceased assaulted not only the accused, but also his daughter. While assaulting derogatory language has been used questioning the morality of the wife of the accused and nascence of the child of the accused. The accused has caused such injuries only after the deceased assaulted not only the accused, but also his daughter. While assaulting derogatory language has been used questioning the morality of the wife of the accused and nascence of the child of the accused. Only under such circumstances, the occurrence had taken place. 10.7 For all the reasons stated above, the conviction of the accused under Section 302 I.P.C. cannot be legally sustained. Accordingly, while acquitting the accused of the offence under Section 302 I.P.C., we hold him guilty under Section 304 Part I I.P.C. for which he would stand sentenced to undergo rigorous imprisonment for three years. Fine amount imposed on him for the offence under Section 302 I.P.C. is sustained for his conviction under Section 304 Part I I.P.C. Accordingly, the appeal is partly allowed. The appellant/accused is on bail. The bail bonds executed by him shall stand cancelled forthwith and the learned Sessions Judge is directed to take steps to secure the presence of the appellant/accused and commit him to jail to undergo the remaining period of sentence, if any to be undergone. The period of sentence already undergone by him shall be given set off.