Judgment :- K.N. Basha, J. 1. This appeal is preferred by A-1 Velu @ Ravichandran and A-2 Veeramani challenging the judgment of the learned Additional District and Sessions Judge, Chidambaram, dated 27.03.2006 made in S.C.No.394 of 2004 convicting the first appellant under Section 341 IPC and sentencing him to undergo one month rigorous imprisonment and convicting him under Section 302 IPC and sentencing him to undergo life imprisonment and also imposing a fine of Rs.5,000/-, in default, to undergo three months rigorous imprisonment and convicting the second appellant (A-2) for the offence under Section 341 IPC and sentencing him to undergo one month rigorous imprisonment and also convicting him under Sections 302 r/w 34 IPC and sentencing him to undergo life imprisonment and also imposing a fine of Rs.5,000/-, in default, to undergo three months rigorous imprisonment. The sentences are ordered to run concurrently. 2. The prosecution version as unfolded during the course of trial through the evidence adduced by the prosecution is as follows : (i) P.W.1 is the sister-in-law of the deceased, Arumugam. P.W.6 is the brother of the deceased and husband of P.W.1. P.W.4 is the son of P.W.1 and P.W.6. The deceased is the brother-in-law of P.W.7. The deceased was working at Saudi Arabia and returned to his village, namely, Agaram on leave on 12.04.2004. He has started construction of a new house at Kosavanpettai. The deceased was staying in the house of P.W.1. A-1s house was situated adjacent to the house site of the deceased, wherein, the new house construction was going on. A-1 was working as Mason in the construction of the new house of the deceased. A-1s wife one Jeya used to meet the deceased frequently and she used to give juice and eatables to the deceased and she used to chat with the deceased. Two months prior to the occurrence, A-1 was said to have seen his wife, Jeya, with the deceased, Arumugam, as both of them were talking with each other and suspecting her fidelity, A-1 beat his wife, Jeya and sent her to her parental house. Due to such enmity, A-1 was threatening to kill the deceased with the help of hirelings. P.W.14 pacified A-1. Thereafter, A-1 was stating that the deceased pulled the hands of his wife and as such he would not leave him without killing him. Due to such enmity, A-1 was threatening to kill the deceased with the help of hirelings. P.W.14 pacified A-1. Thereafter, A-1 was stating that the deceased pulled the hands of his wife and as such he would not leave him without killing him. (ii) On the fateful day of occurrence, i.e., on 11.09.2004 at 11.00 a.m., P.W.1 prepared the tiffen and gave it to the deceased and to other Masons. The deceased was proceeding in his cycle and P.W.1 followed him. While the deceased was nearing Maha Sakthi Mariamman Temple near the house of President one Perumal, A-2 was proceeding in a cycle and A-1 was sitting in the carrier of the cycle as pillion-rider. A-1 intercepted the deceased and cut the deceased with a knife on his neck, cheek and forehand repeatedly. P.W.1 raised hue and cry. A-1 took the knife with him and left the scene in the cycle which was ridden by A-2. P.Ws.2 to 5 said to have witnessed the occurrence. On hearing the hue and cry, P.W.7 informed P.W.6, husband of P.W.1, and thereafter, they came in an auto to the scene of occurrence and found the deceased was lying in a pool of blood. P.W.6 along with P.W.1 took the deceased to the hospital. (iii) The Doctor, P.W.19, attached to the Government Hospital, Paringipettai, examined the deceased on 11.09.2004 at 11.50 a.m. brought by P.W.6, his brother. On examination, the Doctor, P.W.19, found that the deceased already dead. He sent the body to the mortuary and death intimation, Ex.P.18 to Paringipettai police station. (iv) P.W.1 along with P.W.6, her husband, went to Paringipettai Police Station at 12.15 p.m. on 11.09.2004 and gave the report, Ex.P.1 to P.W.25, the Inspector of Police. He registered the case in Crime No.361 of 2004 for the offence under Sections 341 and 302 IPC. Ex.P.13 is the Express First Information Report. He sent the First Information Report to the higher police officials and to the Magistrate Court. (v) P.W.25 took up investigation and went to the scene of occurrence and prepared the observation mahazar, Ex.P.2 and the rough sketch, Ex.P.14 in the presence of witnesses. He recovered from the scene, M.O.3, bloodstained earth, M.O.4, sample earth, M.O.5, wire bag, M.O.6, ever-silver vessel, M.O.7, ever-silver tumblers – 6 Nos., M.O.8, pair of rubber chappel, M.O.9, Atlas cycle under Ex.P.3. He recovered from the scene, M.O.3, bloodstained earth, M.O.4, sample earth, M.O.5, wire bag, M.O.6, ever-silver vessel, M.O.7, ever-silver tumblers – 6 Nos., M.O.8, pair of rubber chappel, M.O.9, Atlas cycle under Ex.P.3. He went to the Government hospital, Paringipettai and held inquest on the dead body of the deceased. Ex.P.15 is the inquest report. He examined P.Ws.1, 2, 3, 4, 6 and others and recorded their statements and sent the body for post-mortem. (vi) The Doctor, P.W.24, conducted post-mortem on the dead body of the deceased on 11.09.2004 at 4.40 p.m. and found the following injuries : (1) A curved incised injury placed on the back of middle 1/3rd of inner aspect of left forearm to the size 8 x 6 c.m. X underlying bone depth. (2) An obliquely placed incised injury on the left side of face to the size of 8 X 2.5 X 0.75 cm. (3) A vertically placed incised injury on the left side of occipital region of scalp to the size of 10 c.m. X 2.5 c.m. X to the depth underlying full bone thickness. (4) Another vertically placed incised injury on the right side occipital region of scalp to the size of 11 c.m. X 2.5 c.m. X to the depth of underlying full bone thickness. (5) Another obliquely placed incised injury on the right side lower part occipital region to the size of 8 c.m. X 2.5 c.m. X to the depth of underlying full bone thickness. (6) Another obliquely placed incised injury on the left side parietal region of scalp to the size of 6 c.m. X 2.5 c.m. X to the depth of underlying bone depth. (7) A curved another incised injury placed on the left temporal region of scalp to the size of 15 c.m. X 8 c.m. X to the depth of underlying full bone thickness. On dissection, open and further examination of the injuries in serial Nos.3, 4, 5, 6, 7 above, except injury in sl.No.6 all the other underlying parts of skull bones to their full thickness were found incised and fractured to the length of 8 cms., 8 cms., 2.5 cms., (0 cm.) and 8 cms respectively and led into the underlying cranial cavity. (8) Another obliquely placed incised injury on back of neck at the level of C4 vertebra, coursing from posterior midline to the right ear lobe to the size of 13 cms. (8) Another obliquely placed incised injury on back of neck at the level of C4 vertebra, coursing from posterior midline to the right ear lobe to the size of 13 cms. X 6 cms. X 9 cms. (9) A transversely placed incised injury on the back of neck at the level of C5 vertebra coursing from posterior midline to the left side of the size of 9 cm X 2.5 cm X 8 cm. (10) Another obliquely placed incised injury on the back of neck at the level of C5 vertebra coursing from posterior midline to the left side to the size of 4 cms., X 2.5 cms. X its depth merges into depth of injury in serial no.9 above. Injuries described in serial number 8, 9 & 10 were very close and inter-related with each other. On further examination all the soft structures underlying the injured skin on either side of neck were incised to the depth noted above. Further C4 and C5 vertebrae were found incised and multiply fractured to their full thickness cutting spinal cord, vertebral artery etc. Certified all the above injuries are ante-mortem in nature. Certified no other external injury was found anywhere on his body. Certified all the above injuries possess the characteristic features to the type of injury noted against each. Internal Examination : Thoracic and Abdominal structures are pale and intact. Stomach : also pale, intact and on open it showed about 400 m.l. of Chyme which contained recognisable food material nfH;tuF and unrecognisable food materials. Head and neck and spinal column ; scalp, skullbone, neck : As noted above in external injury. Brain membranes intact. Left temporal lobe found contused to the size of 6 X 5 ms. Ex.P.10 is the Post-mortem certificate. The Doctor opined that the deceased would appear to have died of shock and haemorrhage due to injuries sustained and involving vital organ of spinal cord and head structure. (vii) P.W.25, in continuation of his investigation, arrested the accused on 12.09.2004 at 10.00 a.m., at Puduchatiram-Paringipettai bus road near Paringipettai Periamathaku. In pursuance of the admissible portion of his confession under Ex.P.4, he recovered M.O.1, aruval. Thereafter, the accused was remanded to judicial custody through the Court. He sent the material objects to the Court with a requisition to send the same for chemical examination under Ex.P.16. In pursuance of the admissible portion of his confession under Ex.P.4, he recovered M.O.1, aruval. Thereafter, the accused was remanded to judicial custody through the Court. He sent the material objects to the Court with a requisition to send the same for chemical examination under Ex.P.16. He received the chemical examination report, Ex.P.18 and the serologist report, Ex.P.19. On 15.09.2004, he examined the remaining witnesses and recorded their statements. On 23.09.2004, he arrested A-2 at Agaram railway station bus stop at 5.00 a.m. In pursuance of the admissible portion of his confession under Ex.P.6, he recovered a Hercules cycle, M.O.10. Thereafter, A-2 was remanded to judicial custody through the Court. He examined the Doctors, P.W.19 and P.W.24 and recorded their statements. He received the Post-Mortem Certificate, Ex.P.10. After completion of investigation, he filed the charge sheet against A-1 and A-2 on 011. 2004 for the offence under Sections 341 and 302 r/w 34 IPC. 3. The prosecution, in order to bring home the charges against the accused examined P.Ws.1 to 25, marked Exs.P.1 to P.19 and M.Os.1 to 14. 4. When the accused were questioned under Section 313 Cr.P.C. in respect of incriminating circumstances appearing against them through the evidence adduced by the prosecution, both A-1 and A-2 denied their complicity with the offence and stated that they are contrary to the facts. They have not chosen to examine any witness nor marked any document on their side. 5. 1. Mr.S.Ashok Kumar, learned senior counsel appearing for the appellants contended that the prosecution has miserably failed to prove its case by adducing clear and cogent evidence. It is contended that there are contradictions in material particulars between the evidence of the eye-witnesses, P.Ws.1 to 5. The learned senior counsel would submit that there is no consistent version from the eye-witnesses, P.Ws.1 to 5, in respect of the overt act alleged against A-2. It is pointed out by the learned senior counsel that the case of the prosecution is that A-2 was riding the cycle in which A-1 was sitting as a pillion-rider and A-2 intercepted the cycle of the deceased at the time of occurrence, whereas, P.W.1 in her evidence categorically stated that only A-1 intercepted the deceased which is contrary to the prosecution version. It is further submitted that P.W.2 has also categorically stated that only A-1 intercepted the deceased. It is further submitted that P.W.2 has also categorically stated that only A-1 intercepted the deceased. The learned senior counsel would submit that there is absolutely no other allegation levelled against A-2 and as such A-2 is entitled to the benefit of doubt. 5. 2. The learned senior counsel would further submit that the names of the alleged eyewitnesses, P.Ws.2 to 5 have not been mentioned in the report, Ex.P.1 given by P.W.1 and as such it is highly doubtful about the presence of the other eye-witnesses at the time of occurrence. It is contended that P.W.1 has not even mentioned the name of P.W.4, the alleged eye-witness, who is none else than her son. Therefore, it is submitted that it is not safe to place reliance on the evidence of the alleged eyewitnesses, P.Ws.1 to 5 to convict the accused. 5. 3. The learned senior counsel without prejudice to his earlier contention further submitted that even assuming that A-1 has committed the offence, his act would squarely come under Exception 1 to Section 300 IPC as the accused could have attacked the deceased only due to grave and sudden provocation. It is submitted that the alleged eye-witnesses, P.Ws.1 to 5, have categorically stated that A-1 attacked the deceased as the deceased was having illicit intimacy with his wife, Jeya. It is further submitted that P.W.6, who is none else than the brother of the deceased, has also stated that the deceased was having illicit intimacy with A-1s wife and he has warned the deceased. Therefore, it is contended by the learned senior counsel that the act of the accused would come squarely under Exception 1 to Section 300 IPC. 6. Per contra, Mr.N.R.Elango, learned Additional Public Prosecutor contended that the prosecution has come forward with clear and consistent evidence through the eyewitnesses, P.Ws.1 to 5 and their evidence is also corroborated by the medical evidence through the Doctor, P.W.24, who has conducted post-mortem as the Doctor found corresponding injuries in respect of the overt acts alleged against A-1. It is submitted that there is no infirmity or any contradiction in material particulars between the evidence of the eye-witnesses. It is submitted that there is no infirmity or any contradiction in material particulars between the evidence of the eye-witnesses. The learned Additional Public Prosecutor would further submit that even in respect of A-2 though there is some inconsistency between the evidence of P.Ws.1, 3 and the other eye-witnesses, there are materials available on record to implicate A-2 to the effect that A-2 intercepted the deceased and thereafter, A1 inflicted cut injuries on the deceased. Therefore, it is submitted by the learned Additional Public Prosecutor that the prosecution has proved its case in all aspects. 7. We have given our careful and anxious consideration to the rival contentions put forward by either side and also thoroughly scrutinized the entire materials available on record and perused the impugned judgment of conviction. 8. The prosecution heavily placed reliance on the evidence of the eye-witnesses, P.Ws.1 to 5. P.Ws.6 and 7 have immediately come to the scene and they were informed about the occurrence by others and thereafter, P.W.6 along with wife, P.W.1, took the injured (deceased) to the hospital and in the hospital it was declared that the deceased already dead. As far as A-1 is concerned, we are of the considered view that the prosecution has come forward with clear and cogent version through the eye-witnesses, P.Ws.1 to 5. We are unable to see any infirmity or inconsistency between the evidence of the eye-witnesses, P.Ws.1 to 5. It is pertinent to be noted that P.W.1, the eyewitness, has categorically mentioned about the overt acts against A-1 even in the report, Ex.P.1. All the eye-witnesses, P.Ws.1 to 5 in one voice have implicated A-1 for causing the cut injuries to the deceased. It is pertinent to be noted that the categorical version of the eye-witnesses, P.Ws.1 to 5 and P.W.6, brother of the deceased, is to the effect that the motive for A-1 to attack the deceased is the illicit intimacy of the deceased with his wife. The fact remains that the version of the eye-witnesses is also corroborated by the medical evidence through the Doctor, P.W.24, who has conducted post-mortem as he has found corresponding injuries on the dead body of the deceased as per the overt acts alleged against A-1. Therefore, it is very clear that the deceased died due to homicidal violence and that too at the hands of A-1. 9. Therefore, it is very clear that the deceased died due to homicidal violence and that too at the hands of A-1. 9. Now coming to the role of A-2 as per the version of the eye-witnesses, at the outset, we are constrained to state that there is no consistent version in respect of the overt act alleged against A-2. The case of the prosecution is that A-2 was riding the cycle, in which, A-1 was sitting as pillion-rider and A-2 intercepted the cycle, in which, the deceased was coming through the scene of occurrence and thereafter, A-1 was said to have cut the deceased with a knife, M.O.1. It is pertinent to be noted that though it is mentioned in Ex.P.1 that A-2 intercepted the cycle of the deceased, P.W.1 in her evidence has stated only A-1 intercepted the deceased. Therefore, the evidence of P.W.1 is contrary to her earlier version mentioned in Ex.P.1, the report, which was given by her to the police. That apart, P.W.3 has categorically stated that only A-1 got down from the cycle and intercepted the deceased and thereafter, cut the deceased with the knife, M.O.1. As far as P.W.5, yet another eye-witness is concerned, it is pertinent to be noted that P.W.5 has admitted in his cross-examination that he has not seen A-2 earlier to the occurrence and he has identified A-2 for the first time before the Court. It is further admitted by P.W.5 that he has not even aware about the name of A-2. Therefore, we are of the considered view that it is not safe to place much reliance on the evidence of P.W.5 in so far as the overt act alleged against A-2 is concerned. Added to these infirmities, the investigating officer, P.W.25 has admitted in his cross-examination that none of the witnesses stated during the course of their examination as to where A-1 and A-2 conspired together before coming to the scene of occurrence. It is also admitted by P.W.25 that there is no witness to speak about A-1 conspiring with A-2 to commit the offence. Therefore, it is crystal clear that the evidence available on record only discloses that A-1 was simply sitting in the cycle which was ridden by A-2 and except that there is no other specific allegation levelled against A-2. It is also admitted by P.W.25 that there is no witness to speak about A-1 conspiring with A-2 to commit the offence. Therefore, it is crystal clear that the evidence available on record only discloses that A-1 was simply sitting in the cycle which was ridden by A-2 and except that there is no other specific allegation levelled against A-2. In view of the above said infirmities and inconsistencies, we are constrained to give the benefit of doubt to A-2 and accordingly, the appeal in respect of A-2 is allowed. 10. Now we are constrained to consider the crucial question regarding the nature of offence said to have committed by A-1. It is seen that the eye-witnesses, P.Ws.1 to 5, as well as P.W.6, brother of the deceased, have categorically stated that A-1 cut the deceased only due to the illicit intimacy of the deceased with his wife. It is also pertinent to be noted that the eye-witnesses, P.Ws.1 and 4, have categorically stated that two months prior to the occurrence, A-1 was said to have seen the deceased talking with his wife at 5.00 a.m. and thereafter, A-1 beat his wife and sent her to her parental house. The fact remains that as per the categorical version of the witnesses, P.Ws.1 to 6, A-1 was nurturing sustained provocation against the deceased due to the illicit intimacy of the deceased with his wife. It is pertinent to be noted that P.W.4, son of P.W.1, also admitted in his cross-examination that he has seen the deceased chatting with A-1s wife for several times and he has seen A-1s wife giving eatables to the deceased. P.W.5 has also stated even in his chief examination that he heard that the deceased was keeping A-1s wife as concubine and as such, A-1 cut the deceased. P.W.6, who is none else than the brother of the deceased, has also categorically stated that he has seen the deceased talking with A-1s wife frequently and he warned him. It is also stated by P.W.6 in the cross-examination that even after he warned the deceased, the deceased continued to have illicit intimacy with A-1s wife. P.W.6 went on further to admit that the deceased pulled the hands of A-1s wife even after he warned him. It is also stated by P.W.6 in the cross-examination that even after he warned the deceased, the deceased continued to have illicit intimacy with A-1s wife. P.W.6 went on further to admit that the deceased pulled the hands of A-1s wife even after he warned him. Therefore, it is crystal clear that the deceased was having continuous illicit intimacy with A-1s wife and A-1 was provoked due to the said conduct of the deceased. 11. As already pointed out, as per the prosecution version, two months earlier A-1 has seen the deceased along with his wife and as a result, being provoked by such conduct of the deceased, he beat his wife and sent her away to her parental house. The fact remains that in view of the categorical admission of P.W.6 to the effect that the deceased was having continuous illicit intimacy with A-1s wife, due to which A-1 was nurturing sustained provocation and he could have lost his self-control and due to grave and sudden provocation he could have cut the deceased and the cut injuries sustained by the deceased proved to be fatal. 12. The Honble Apex Court in a landmark decision in K.M. NANAVATI VS. STATE OF MAHARASHTRA reported in A.I.R. 1962 S.C. 605, has laid down the following principles regarding the Exception 1 to Section 300 I.P.C. : "1. The test of grave sudden provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in situation in which the accused was placed would be provoked as to lose his self-control. 2. In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act with the first Exception of Section 300 I.P.C. 3. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence." 13. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence." 13. We are of the considered view that the above settled principle of law laid down by the Honble Apex Court in respect of grave and sudden provocation is squarely applicable to the facts of the case on hand, as already stated, as per the admitted case of the prosecution, two months prior to the occurrence, A-1 was said to have seen the deceased along with his wife at 5.00 a.m. and thereafter, as per the version of P.W.6, brother of the deceased, the deceased was having continuous illicit intimacy with A-1s wife and such conduct could have very well added fuel into the fire resulted in the loss of self-control to A-1 and culminating into the act of cutting the deceased and causing his death. Therefore, we have no hesitation to hold that the act of A-1 would squarely come under Exception 1 to Section 300 IPC and accordingly, we are constrained to set aside the conviction and sentence imposed on A-1 by the learned trial Judge, namely, Additional District and Sessions Judge, Chidambaram, in S.C.No.394 of 2004 dated 27.03.2006 under Section 302 IPC and instead, he has to be convicted under Section 304 (I) IPC and accordingly, A-1 is convicted under Section 304 (I) IPC and sentenced to undergo seven years rigorous imprisonment. The trial Court is directed to secure the custody of the accused and thereafter, to commit him to jail in order to undergo the remaining period of sentence. 14. As already stated, the appeal in respect of A-2 is allowed and conviction and sentence imposed on A-2 by the learned trial Judge, namely, Additional District and Sessions Judge, Chidambaram, in S.C.No.394 of 2004 dated 27.03.2006, are hereby set aside. Bail bond executed by A-2 shall stand cancelled. Fine amount paid, if any, is directed to be refunded to him.