Judgment :- The appellant who is the husband of the deceased was convicted for an offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/=, in default, to undergo 6 months R.I. Aggrieved against the conviction and sentence, the present appeal is preferred. 2. As per the charge framed against the appellant, on 10. 2002, at 6.30 pm., at Melavidangallur village, within the jurisdiction of the respondent police, the appellant, in pursuance of the quarrel, suspecting the fidelity of the wife, caused injuries on her head with a wooden log and caused the death of the deceased thereby committed an offence punishable under Section 302 IPC. 3. When the appellant was questioned initially, he denied the complicity of commission of the offence and pleaded innocence. Therefore, the trial of the case was taken on file and during the course of the trial, the prosecution examined P.Ws.1 to 23, marked Exs.P.1 to P.19 and produced material objects M.Os.1 to 9. 4. It is the case of the prosecution that the appellant married the sister of P.W.1 and subsequently married the deceased as his second wife and given birth to 4 children. Subsequently, there were frequent quarrel and on 10. 2002 in pursuance of such a quarrel, the appellant caused injuries on the head of the deceased with wooden log, in the result, the deceased died. 5. It is the evidence of P.W.1 that subsequent to the marriage of his sister, the appellant developed intimacy with the deceased and she became pregnant and a Panchayat was convened and thereafter the marriage was performed between the appellant and the deceased 20 years ago. Four children were born to the appellant and the deceased. Initially, both the wives were living together and subsequently they got separated and the deceased and the appellant were living separately. Since the appellant was consuming alcohol frequently, and further since he suspected the fidelity of his wife, there were frequent quarrels between them and Panchayats were also conducted in that regard. On 10. 2002, at 2.00 p.m., P.W.2 the son of the appellant informed P.W.1 that his parents were quarreling with each other and requested P.W.1 to come to his residence to resolve the same. On 10. 2002, at 2.00 p.m., P.W.2 the son of the appellant informed P.W.1 that his parents were quarreling with each other and requested P.W.1 to come to his residence to resolve the same. Accordingly, at 5.00 pm., P.W.1 reached the residence of the appellant and at that time, they saw the appellant with the wooden log assaulting the deceased on her head and the deceased fell down and then the accused fled away from the scene. Thereafter, P.W.1 requested P.W.9 to bring a car to take the victim to the Government Hospital, Nagapattinam. Accordingly, P.W.10 brought a Car in which P.Ws.1,2 and the injured victim were taken to the Government Hospital. However, before they could reach the Hospital, the deceased succumbed to death. The dead body of the deceased was brought back to the residence of her mother at Melavenmani Village. P.W.1 thereafter went to the Police Station at 8.00 pm., and has given the complaint Ex.P.1. 6. P.W.2, is son of the deceased. He has spoken about the quarrel between the appellant and the deceased on 10. 2002 at 2.00 p.m., and it is he who went to P.W.1 and informed him, who was living at Melavidangallur Village. When they returned back to his residence, seen the appellant assaulting the deceased on her head with a wooden log and subsequently ran away from the scene of occurrence. He has corroborated the evidence of P.W.1. 7. Though, P.Ws 3 to 7, neighbours of the appellant were examined as eye witnesses to support the case of the prosecution, they have been treated as hostile since they did not support the case of the prosecution. 8. P.W.8, who is he house owner of the appellant, deposed that the said house has been rented out to the appellant. However, he has been treated as hostile. P.W.11 is the mother of the deceased and P.W.12 is the neighbour in the village who speak about the quarrel between the appellant and the deceased and motive part of the case of the prosecution. 9. P.W.14 is the VAO who attested the observation Mahazar and recovery mahazar prepared at the scene of occurrence. In the chief examination, he did not support the case of the prosecution. Therefore, he was treated hostile. However, when he was cross-examined, has concurred with the questions put to him and agreed that he has attested those mahazars. 10. 9. P.W.14 is the VAO who attested the observation Mahazar and recovery mahazar prepared at the scene of occurrence. In the chief examination, he did not support the case of the prosecution. Therefore, he was treated hostile. However, when he was cross-examined, has concurred with the questions put to him and agreed that he has attested those mahazars. 10. P.W.15 is the Village Assistant who also attested the mahazars along with P.W.14, VAO and in the chief examination, he did not support the case of the prosecution and therefore he was treated as hostile. P.W.16 is another Village Assistant who has been examined to speak about the surrender of the accused before the VAO and giving statement and further recovery of bloodstained cloths from the accused. However, he did not support the case of the prosecution. 11. P.W.19, Sub Inspector of Police, on 10. 2002, at 10.00 pm., on receipt of the complaint Ex.P.1 given by P.W.1, registered a case in Crime No.228/02, punishable under Section 302 IPC, prepared printed FIR, Ex.P.4 and despatched the same through P.W.20, Head Constable to the learned Judicial Magistrate, Thiruvarur and to the superior police officials. 12. P.W.23, on receipt of the first information report, reached the residence of mother of the deceased at Melvenmani Village, where the body of the deceased was kept and prepared and Observation Mahazar, Ex.P.9, Rough Sketch, Ex.P.10. Caused photographs to be taken by P.W.13, M.Os.2 and 3 series are the photographs and negatives respectively, and examined the witnesses who were present, conducted inquest over the dead body of the deceased. The Inquest Report is Ex.P.11. Thereafter arranged to send the dead body for conducting autopsy through P.W.21, Head Constable with a requisition under Ex.P.6. The Investigating Officer thereafter visited the scene of occurrence and prepared another Observation Mahazar and Rough Sketch Exs.P.12 and 13 respectively, recovered the bloodstained earth and sample earth M.Os.5 and 6 respectively, broken bangle pieces, M.O.7 and wooden log M.O.1 under a cover of mahazar Ex.P.14 in the presence of witnesses. He has also examined the witnesses who were present in the scene of occurrence. On 10. 2002, P.W.14 produced the accused at 11.00 a.m., and in pursuance of the statement given by the accused, M.O.8 and M.O.9 shirt and lungi of the accused were recovered under a cover of mahazar Ex.P.15. Thereafter, the accused was remanded to judicial custody. 13. He has also examined the witnesses who were present in the scene of occurrence. On 10. 2002, P.W.14 produced the accused at 11.00 a.m., and in pursuance of the statement given by the accused, M.O.8 and M.O.9 shirt and lungi of the accused were recovered under a cover of mahazar Ex.P.15. Thereafter, the accused was remanded to judicial custody. 13. P.W.22, is a Medical Officer attached to Government Hospital, Nagapattinam. It is his evidence that one Dr. Valluvan conducted postmortem over the dead body of the deceased in pursuance of the requisition Ex.P.6. Viscera was preserved and sent for chemical analysis and Ex.P.7 report has been received to the effect that it does not contain any alcohol or poison. Thereafter issued the postmortem certificate Ex.P.8 wherein he has found the following injuries:- External Injuries: 1. A centrally placed lacerated obliquely placed 8 x 3 cm cut wound on the frontal scalp exposing the frontal bone beneath. 2. Two cut wounds (irregular edges) each 1 x 0.5 cm about 2 cm from left margin of 1 wound, exposing the frontal bone. 3. A 2 x 0.5 cm cut wound, 2 cm from the right margin of 1 wound exposing the frontal bone. 4. A lacerated cut wound 6 x 3 cm (triangular defer? Over the right parietal scalp with blood clot exposing the bone beneath it. 5. Avulsion of nail right middle finger (attached) exposing the soft tissue beneath it. 6. A black colour pressure wound of 6 x 1 cm over the dorsal aspect of right wrist. Thorax: No fracture ribs. Heart 250 gms, chamber empty, c/s pale, lungs right 450 gms. Left 400 gms. Blackish brown C/s pale, Liver 1500 gms ... odour, C/s spleen 140 gms. C/s pale. Kidney 120 gms. Light brown C/s pale. Small intestines not distended, partially digested rice particles C/s pale, Uterus C/s Pale, Cavity empty, No fracture pelvis. Head: Multiple fractures of frontal and parietal bones (5 pieces, all irregular shaped with jagged edges) Membranes torn over frontal and parietal lobes. Brain 1300 gms. No EDH. 1. Lacerated frontal cortex right 6 x 5 cm with surrounding haematoma. 2. Hemorrhage contusion 8 x 5 cm frontal cortex left side. 3. Dark red clotted blood of thin film over both parietal lobes. The Doctor also opined that the deceased would appear to have died of head injury with multiple fracture of skull bones. 14. No EDH. 1. Lacerated frontal cortex right 6 x 5 cm with surrounding haematoma. 2. Hemorrhage contusion 8 x 5 cm frontal cortex left side. 3. Dark red clotted blood of thin film over both parietal lobes. The Doctor also opined that the deceased would appear to have died of head injury with multiple fracture of skull bones. 14. On completion of the postmortem M.Os 2 to 4, saree, blouse and inskirt of the deceased were recovered. The bloodstained articles were sent to the Judicial Magistrate, Thiruvarur for forwarding the same to the Chemical Analyst to receive opinion. Ex.P.16 is the requisition. Ex.P.17 is the letter sent by the learned Judicial Magistrate, Thiruvarur. Ex.P.18 and 19 are respectively the Chemical Analyst report and Serologist report. After receiving the postmortem certificate and opinion and on conclusion of the investigation, final report was filed by the Investigating Officer on 110. 2002 for the offence punishable under Section 302 IPC. 15. The learned Sessions Judge, Nagapattinam, questioned the accused under Section 313 Cr.P.C., on the incriminating materials produced by the prosecution during the course of trial, for which, the accused denied having committed any offence and pleaded innocence. Neither oral, nor documentary materials were produced by the defence. After hearing the arguments made by both parties, the learned Sessions Judge convicted and sentenced the appellant as aforementioned and aggrieved against the same, the present appeal is filed. 16. Learned counsel for the appellant submits that except P.Ws 1 and 2, most of the witnesses put forth by the prosecution have turned hostile. P.Ws.3 to 7 are independent witnesses and they did not support the case of the prosecution. On the contrary, P.W.2 is son of the deceased, and P.W.1 is the uncle of the deceased. The accused and the deceased were living together and they were living separately and the deceased was having illicit intimacy with some one and she was found dead under suspicious circumstances. However, in view of the quarrel between the appellant and the deceased, a false case has been foisted on the appellant. It is further submitted that the Village Administrative Officer and Village Assistants did not even support the version of the prosecution that the appellant surrendered and given a statement as if he has committed the offence. However, in view of the quarrel between the appellant and the deceased, a false case has been foisted on the appellant. It is further submitted that the Village Administrative Officer and Village Assistants did not even support the version of the prosecution that the appellant surrendered and given a statement as if he has committed the offence. The other witnesses put forth do not in any way improve the case of the prosecution and therefore submitted that it is a fit case for acquittal. 17. Per contra, the learned Additional Public Prosecutor submits that merely because P.Ws 1 and 2 are interested, their testimony cannot be brushed aside. P.W.2 is the son of the accused/appellant and the deceased and it is only on his information P.W.1 who is the uncle of the deceased and the brother-in-law of the appellant was brought to the scene of occurrence. Only at that time the occurrence had taken place and it was witnessed by both of them. Though the other witnesses P.Ws. 3 to 7 have been present as eye-witnesses, they did not support the case of the prosecution. Though P.W.14, Village Administrative Officer officially denied having attested the mahazar, during the course of cross-examination by the State, he has admitted such preparation of the mahazar by the Investigating Officer. Even though the Village Assistant did not support the case of the prosecution with regard to the surrender and recording of the statement of the accused, even excluding such material, the prosecution has substantiated its case and the learned Sessions Judge has given well-founded reasons to convict the accused. 18. We have perused the materials available on record and heard the submissions made by both sides. 19. The deceased is the second wife of the appellant, and given birth to four children. Due to frequent quarrels, they were living separately and Panchayatdars pacified them and it is the case of the prosecution that they were living together at the time of occurrence along with their children. On the fateful day, the quarrel started at 2.00 pm., and since it was continuing, P.W.2 son of the deceased, rushed to the neighbouring village to inform P.W.1 who is his grand father and by the time the grand father reached the residence of the deceased, they have witnessed the assault on the deceased by the accused with the wooden log on her head. Both P.Ws 1 and 2 with the assistance of P.Ws 9 and 10 took the deceased in a Car for admitting her in the Government Hospital, Nagapattinam. However, the deceased died on the way and therefore the dead body was brought back to the residence of her mother at Melavenmani Village. The evidence of P.Ws 2 and 3 is corroborated by the official witnesses and there is positive evidence by the Medical Officer that the death of the deceased was due to homicidal violence. 20. On perusal of the evidence of P.W.1 and 2, we can see that misunderstanding was in existence earlier and even on the date the quarrel started, around 2.00 pm., since P.W.2 could not control the father/accused and his mother/deceased, he went to the neighbour village and informed the same to P.W.1, his grandfather. In the meantime, the quarrel continued upto the evening at 5.30 pm., At 6.00 pm., only the assault had taken place. Since P.Ws 3 to 7 turned hostile, as to what actually transpired between the deceased and the appellant, there is no direct eye witness. However, for such purpose, we have to look into the statement of the accused recorded by the Investigating Officer soon after his arrest at the time of recovery of the bloodstained cloths. While looking at those inadmissible portion of the statement of the accused, we could see that the accused was drunk and when he requested at 2.00 pm., for serving his lunch, his wife/deceased refused, indulged in quarrel. The appellant went back and again consumed alcohol and when he returned back home, the again a quarrel ensued and even at that time, the deceased did not serve him food. It is the version of the appellant that since he was hungry and lost his self control took the wooden log lying inside the house and assaulted the deceased. Though the appellant was drunk and the drunkenness of the appellant could not be taken as an advantage for pleading any exception for reducing the offence, the fact remains is that there was a tainted relationship between the husband and wife, and they were living separately for some time. It is also the evidence that only on the intervention of the panchayatdars, they were living together during the time of occurrence. Even after joining together, they started quarreling with each other. 21. It is also the evidence that only on the intervention of the panchayatdars, they were living together during the time of occurrence. Even after joining together, they started quarreling with each other. 21. On the side of the appellant, it is stated that the deceased was having illicit intimacy with some other woman. However it is the prosecution version that the appellant after consuming liquor indulged in quarrel. However, it is established that the accused/husband was refused food by the deceased/wife during the lunchtime and the quarrel continued upto 5.30 or 6.00 pm., and only under such circumstances, upon the sudden provocation losing his self-control, the appellant took a wooden log lying inside the house and caused the alleged overt acts. In view of the facts and circumstances of the case, we could see that there is no premeditation on the part of the appellant to cause the death of the deceased. Though the quarrel continued for three hours, the occurrence took place at the spur of the moment during such quarrel. Under such circumstance, we are of the considered view that the appellant did not intend to cause the death of the deceased. However, the injury caused with the weapon used by the appellant will be sufficient to cause the death of the deceased and therefore in view of the facts and circumstances of the case, the accused has committed culpable homicide not amounting to murder in a fit of anger and passion. Therefore, the conviction under Section 302 IPC imposed by the Sessions Court is set aside and in the alternative, the appellant is convicted for the offence punishable under Section 304(1) IPC and liable to be sentenced to undergo rigorous imprisonment for Seven years. The fine imposed on the appellant is unaltered. 22. The appeal is partly allowed modifying the conviction and sentence as stated above by setting aside the judgment-dated 16. 2005, made in S.C.No. 231 of 2004, by the learned Sessions Judge, Nagapattinam.