Judgment :- M. Chockalingam, J. 1. Challenge is made to the judgment of the Principal Sessions Judge, Dharmapuri at Krishnagiri made in S.C.No.259 of 2006, whereby the sole accused/appellant stood charged tried and found guilty under Section 302 IPC and awarded life imprisonment and to pay a fine of Rs.1000/-, in default to undergo two years R.I., 2. The short facts necessary for the disposal of this appeal can be stated as follows: a) The appellant Muthuvedi is the third wife of the deceased. The first wife got separated, while the second wife eloped and then the deceased married the accused/appellant and had four children through her. PWs.2 and 3 were the close relatives of the deceased residing in the same village Vaiyali Kottai whereby the deceased was living with his family. The deceased was a liquor addict and used to come to home at late hours and used to quarrel with his wife. Apart from this, he was picking up quarrel with the villagers also. b) On 9. 2004 at about 8.30 a.m. when P.W.7, the Village Administrative Officer of Sikkardhanahalli Village was in his office, the accused appeared before him and gave an oral statement and the same was reduced into writing which was marked as Ex.P.5. After recording her statement, P.W.7 went to the place of occurrence i.e. house of the accused at Vaiyali Kottai along with the accused and verified. After verification, he came down to his office along with the accused, prepared a complaint which is marked as Ex.P.6 and subsequently proceeded to Kariamangalam Police Station at 11.30 a.m. along with the accused and presented the complaint under Ex.P.6 along with the statement of the accused under Ex.P.5 before P.W.12, Inspector of Police attached to Karimangalam Police Station. On the strength of Ex.P.5, a case came to be registered in Crime No.496 of 2004 under Section 302 of I.P.C. Ex.P.20, the F.I.R. was despatched to the Court. P.W.12 went to the place of occurrence along with P.W.7 and made an inspection in the presence of the witnesses and panchayators. He prepared Ex.P.7, the observation mahazar and Ex.P.8, the rough sketch. Then, he conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and after completion of inquest,he prepared the reports, viz.,Exs.P.21,22 and 23 respectively. Then, the dead body was sent for the purpose of post-mortem. He prepared Ex.P.7, the observation mahazar and Ex.P.8, the rough sketch. Then, he conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and after completion of inquest,he prepared the reports, viz.,Exs.P.21,22 and 23 respectively. Then, the dead body was sent for the purpose of post-mortem. c) P.W.6, the Doctor attached to the Government Hospital, Palacode, on receipt of the requisition, has conducted post-mortem on the body and head of the deceased and has issued Exs.P.2 and 4, the post-mortem certificates respectively, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained and severance of head d) In the meantime, he had examined the witnesses and recorded their statements. Subsequently, he had seized some blood stained earth and unblood stained earth from the place of occurrence under the seizuure mahazar Ex.P.9. The blood stained earth and unblood stained earth were marked as M.O.1 and M.O.2 respectively. e) Pending investigation, P.W.14 arrested the accused and she has come forward to give confessional statement, which was recorded in the presence of the witnesses. The admissible portion of confessional statement of the accused was marked as Ex.P.10. Pursuant to the confessional statement, the accused produced M.O.3 bill hook, M.O.4 Jacket and M.O.5 Saree which were recovered under Ex.P.11, the mahazar. f) Thereafter the requisition was forwarded to the concerned Judicial Magistrate. The accused was sent for judicial remand. All the material objects recovered were subjected to chemical analysis by the Forensic Science Department, which resulted in Ex.P.17, the Biology report and Ex.P.18 the Serologists report. g) A requisition was received by the Chief Judicial Magistrate,Krishnagiri for recording the statement of the accused under Section 164 of the Cr.P.C. In pursuant to his requisition, learned Judicial Magistrate II,Dharmapuri was directed to record the statement under Section 164 Cr.P.C from the accused which is marked as Ex.P.18. P.W.12,after further investigation and on completion of the investigation, filed the final report. 3. The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 12 witnesses and also relied on 23 exhibits and 9 M.Os. P.W.12,after further investigation and on completion of the investigation, filed the final report. 3. The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 12 witnesses and also relied on 23 exhibits and 9 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. The accused flatly denied the same as false. No defence witness was examined. The trial court, after hearing the arguments advanced and scrutinizing the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty and awarded punishment as referred to above. Hence this appeal has arisen at the instance of the accused/appellant herein. 4. Advancing arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution had no direct evidence to offer and it rested the entire case on two pieces of evidence. One is the Extra Judicial confession alleged to have been given by the accused to PW7, the Village Administrative Officer and other piece of evidence was the statement recorded under Section 164 Cr.P.C. of the accused before the Judicial Magistrate II,Dharmapuri which is marked as Ex.P.5. Except these two piece of evidences, no other evidence was forthcoming from the prosecution. 5. Learned Counsel for the appellant would comment that both of these evidences have been rejected by the trial Court. Insofar as the conduct of the Village Administrative Officer is concerned, it would clearly indicate that such a confession statement could not have been given at all. According to the prosecution, the occurrence had taken place on 9. 2004 at 11.30 p.m. and the office of the Village Administrative Officer is situated about 2 1/2 Kms away from the house of the accused. When the Village Administrative Officer was present in his office, the accused came there and gave an oral statement which was reduced into writing and he had also obtained signature in that statement and thereafter, V.A.O went to the place of occurrence and verified and after verification, P.W.7, again came to the office. When the Village Administrative Officer was present in his office, the accused came there and gave an oral statement which was reduced into writing and he had also obtained signature in that statement and thereafter, V.A.O went to the place of occurrence and verified and after verification, P.W.7, again came to the office. When he proceeded to the place of occurrence, he went in his bicycle and the accused walked all along to reach the distance. The Village Administrative Officer went to the Place of occurrence first and thereafter the accused reached the place. The conduct of the Village Administrative Officer was not one expected of the Officer under the given circumstances. The learned counsel for the petitioner further added that the Village Administrative Officer has not prepared three copies of the report. It is pertinent to point out that he produced the accused before the Police Station at 11.30 a.m. Thereafter she was taken to the place of occurrence along with the Investigating Officer. Contrarily, PW,12, the Inspector of Police has categorically deposed that she was not taken to the place of occurrence, since it would create problem in the village. The inconsistency in the evidence of the Village Administrative Officer and PW.12 would clearly indicate that such a confessional statement could not have been given at all. Since there was no evidence in the the hands of the police on investigation, they have prepared such a document, as if he has given confession before the Village Administrative Officer. Learned counsel would further add that the occurrence could not have been taken at all and the document is only a fabricated one. In so far as the second piece of evidence is concerned, the confessional statement recorded under Section 164 Cr.P.C. by the Judicial Magistrate concerned from the accused has got an evidentiary value. Firstly necessary warnings which is expected to be given, but not given. Secondly, time for reflection has to be given to the accused. The learned counsel,attacking the judicial confession alleged to have been made by the accused before the Magistrate concerned, would submit that it is not in accordance with law, nor was it one after following the procedural formalities, which are mandate under Section 164 Cr.P.C. and so long as the mandatory provisions of Section 164 Cr.P.C. are not strictly complied with, no evidentiary value can be attached to such confession. Under such circumstances, the trial Court should have rejected the prosecution, outright, contrarily erroneous views were given in the judgment of conviction and punishment was awarded and hence it has got to be set aside. 6. The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 7. It is not in controversy that Mariappan, the husband of the accused/appellant was actually found dead in his residence. Following the registration of the case, P.W.12, the Inspector of Police proceeded to the spot and made a inquest on the dead body and the dead body was sent for Post mortem. After the inquest was made by the Investigating Officer, the body and head of the body which found severed were subjected to postmortem by P.W.6, the Doctor, who has given his categorical opinion that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. The fact that the deceased died out of homicidal violence was never disputed by the appellant before the trial court and hence it has got to be recorded so. 8. In order to substantiate the charges levelled against the appellant/accused that she has been in the house of Mariappan, no direct evidence was available. But the prosecution rested his case on two piece of evidences viz., firstly the extra judicial confession given to P.W.7, secondly the statement of the accused under Section 164 Cr.P.C. recorded by the Judicial Magistrate II, Dharmapuri. At the outset, the Court is of the considered opinion that the statement recorded under Section 164 Cr.P.C. by the Judicial Magistrate has got to be rejected. A perusal of the document would clearly indicate that necessary warnings were not given to the appellant. Apart from that, no time for reflection was given and added further the mandatory provision is that necessary certificate should have been appended to the statement and the same was also not done. 9. The contention raised by the learned counsel has got to be accepted. Apart from that, no time for reflection was given and added further the mandatory provision is that necessary certificate should have been appended to the statement and the same was also not done. 9. The contention raised by the learned counsel has got to be accepted. From a reading of Section 164 Crl.P.C., it would clearly indicate that the object for introduction of these provisions is to ensure that the confessional statement given by the accused before the Judicial Magistrate, was made voluntarily, and it was not tainted with any invalidating factors namely undue influence or misrepresentation or false assurance and in order to make it perfect, the Magistrate is expected to put all cautions to the accused. In order to assure that the said confession was made voluntarily and can be acted upon, the said confession should contain a certificate, what is one contemplated under Section 164(4) of the Cr.P.C. 10. Here it remains to be stated that the function of the Magistrate in recording the confessional statement under Section 164 Cr.P.C. is a solemn Act and he must follow the procedural formalities and to ensure that all the requirements of the provisions are complied with properly. In the instant case, a reading of the confessional statement recorded under Section 164 Cr.P.C. by the Judicial Magistrate II, Dharmapuri would clearly indicate that mandatory provisions have not been complied with and first of all, necessary warnings were not given to the accused. Secondly, the time for reflection was not given. Thirdly, necessary certificate as contemplated under Section 164(4) Cr.P.C. was not appended. Thus, it is would quite clear that this statement cannot be given any evidentiary value and is of any legal consequences. Hence, it has got to be rejected. In so far as the other piece of evidence, viz., the extra judicial statement given by the accused to PW7, the Village Administrative Officer, the Court has to accept the same. In a case like this before accepting the extra judicial confession, the Court must look over two events. Firstly to whom and under what circumstances the extra judicial Statement was made, secondly whether the evidence of the person against whom the extra judicial confession made inspires the confidence of the Court. In the instant case, PW7 who is the Village Administrative Officer of the said village. Firstly to whom and under what circumstances the extra judicial Statement was made, secondly whether the evidence of the person against whom the extra judicial confession made inspires the confidence of the Court. In the instant case, PW7 who is the Village Administrative Officer of the said village. It is also can be seen from the evidence that he was in the nearby village and used to come to office at 8.30 a.m. The crime has taken place at 11.30 p.m., the accused has immediately proceeded to the Village Administrative Officer office, but he was not available and she was waiting at that place and when he came to the office at 8.30 a.m., the accused has given a statement and PW7, reduced the same into writing which is marked as Ex.P.5. Thereafter he went to the place of occurrence and made verification and he came back to the office and thereafter he prepared Ex.P.6 and proceeded to the Karimangalam Polie Station along with Ex.P.5 along with the accused. As could be seen, the Court is unable to suspect the evidence of P.W.7. The entire evidence of PW.7 looked into would clearly inspires the confidence of the Court. Now, when the accused after committing the crime has come to the office of the Village Administrative Officer, waiting at the VAO Office and narrated the incident to VAO and the said statement was reduced into writing by the Village Administrative Officer which inspires the confidence of the Court and hence it has got to be acted upon. At this juncture, it is pertinent to point out that he has given a confessional statement which was recorded by the Investigation Officer and pursuant to which, she has also produced Bill hook, saree and blouse which also contained human blood. Admittedly, the accused/appellant was residing with the respondent along with the children. It is not the case of the appellant before the trial Court she was away on the date of occurrence. Once she was stayed with him along with the children on that day, one would naturally expect how the death of her husband by severing the head has taken place. In the instant case, following the confessional statement, the bill hook has been recovered from her and it was his human blood. Once she was stayed with him along with the children on that day, one would naturally expect how the death of her husband by severing the head has taken place. In the instant case, following the confessional statement, the bill hook has been recovered from her and it was his human blood. Thus, the evidence before the trial Court would be supposed to indicate that except the accused, no one can could have committed the offence. Thus,the prosecution has proved the case. 11. Insofar as the second line of argument, this court is able to see force in the contention put forth by the learned counsel for the appellant. In the instant case, as pointed out earlier,the confessional statement would look into would clearly indicate that she is the third wife of the deceased and she has got four children and the usual practice of the deceased to come in the night hours in a drunkard mood i.e. on the day he came at 11.30 p.m., asked the deceased to boil rice and thereafter he caused simple injury on the accused with the blade. When she was provoked by the circumstances and could not tolerate the torture, attacked the deceased with a bill hook and severed his head instantaneously. Under such circumstances, as rightly put forth by the learned counsel for the appellant, the confession statement must be considered in toto. A portion of the confession would clearly indicate that there was a quarrel between the spouse very often and due to which provocation was made by the accused on that date and which has compelled her to commit such a crime and thus the act of the accused would attract the penal provision of Section 304(I) IPC and awarding punishment of 7 years R.I. would meet the ends of justice. 12. Accordingly, the conviction and sentence imposed on the appellant under Section 302 IPC are set aside and instead, the appellant is convicted under Section 304(I) IPC and is directed to undergo 7 years R.I. The period of sentence already undergone by the appellant is ordered to be given set off. The fine amount and default sentence imposed on the appellant by the trial court will hold good. With the above modification in conviction and sentence, this criminal appeal is dismissed.