Judgment Per C. NAGAPPAN, J. 1. The appellant-Munirathnam is the sole accused in Sessions Case No. 161 of 2007 on the file of Additional Sessions Judge, Fast Track Court No. I, Chengalpattu and he has preferred this appeal challenging the conviction and sentence imposed on him for the offence of murder under Section 302 IPC. For the sake of convenience, in this Judgment, the appellant will be referred to as accused. 2. Charge under Section 302 IPC was framed against the accused on the allegation that he attacked his wife Veerammal with cement slab on her face, resulting in her death. The learned Additional Sessions Judge found the accused guilty of the charge and sentenced him to undergo life imprisonment and also to pay a fine of Rs. 1,000/- in default, to undergo simple imprisonment for one month. 3. To prove the charge, the prosecution examined P.Ws. 1 to 11 and marked Exhibits P-1 to P - 13 and M.Os. 1 to 5. 4. Briefly, the case of the prosecution is stated as follows. Veerammal was a flower vendor and P.W.2-Bommi, P.W.3 Sakila and deceased – Veerammal are daughters of P.W.1 – Chellappan. Two years prior to occurrence, she married the accused-Munirathnam and all of them were living together in the house of P.W.1 – Chellappan. She became pregnant and the accused wanted to go for separate living and she refused and insisted to live jointly with her family members. The accused was selling fruits and he purchased a hand-cart from P.W-5 – Kaleel out of the money saved by his wife Veerammal. Veerammal found fault with the accused for having purchased handcart, since she wanted to construct a house out of the said amount. A day prior to occurrence, both the accused and Veerammal quarreled over this issue in the tea shop of P.W.6-Chellammal and the accused gave a slip on her face and later purchased tea and gave it to her. P.W.2-Bommi and P.W.3-Sakila returned home after work in the export company and they found Veerammal weeping and when they enquired, she informed them about the quarrel which took place between her and the accused over the purchase of hand-cart and the slap given by the accused. P.W.2-Bommi and P.W.3-Sakila returned home after work in the export company and they found Veerammal weeping and when they enquired, she informed them about the quarrel which took place between her and the accused over the purchase of hand-cart and the slap given by the accused. At about 10 or 11 p.m., the accused came drunk to the house and the accused and Veerammal went to sleep underneath the Tamarind tree in front of the house as usual. P.W.2-Bommi woke up at 2 a.m. and saw both the accused and Veerammal sleeping undermeath the tree. P.W.7 – Gajalakshmi, who was the immediate neighbour of Veerammal, was talking over telephone about the marriage alliance of her son at 2 a.m. and she also saw the accused and Veerammal sleeping underneath the tree as usual. P.W.1 – Chellappan, at 5.15 a.m., before going to work called Veerammal by name and there was no response and when he went near and removed the bed-sheet, he found M.O.1-Cement slab on the face of Veerammal and she was dead with blood-stained injury on the face. The accused was missing. P.W.1 – Chellappan went to Maraimalai Nagar Police Station at 6 a.m. on 28. 2006 and gave Exhibit P -1 –complaint and P.W.9-Sub Inspector Muralidharan received the same and registered a case in Crime No. 422 of 2006 under Section 302 IPC and prepared Exhibit P-9-First Information Report and dispatched the same to the Court and higher officers. P.W.11 – Inspector Balu took up the case for investigation and went to the occurrence place at 7 a.m. and prepared Exhibit P-2-Observation mahazar in the presence of P.W.4 – Parthasarathy and another and Exhibit P – 11 is the Rough sketch. At 8 a.m., he seized M.O.4 – blood – stained earth and M.O.5 – sample earth from the occurrence place under Exhibit P – 3 – mahazar in the presence of the same witnesses. At 8.15 a.m., he seized M.O.1 – blood – stained cement slab in the presence of same witnesses under Exhibit P – 4 – mahazar. At 8.45 a.m., in the presence of same witnesses, he seized M.O.2 – blood – stained lungi under Exhibit P-5 – mahazar. He conducted inquest from 9.30 a.m., to 11.30 a.m. on the body of Veerammal in the presence of panchayatars and prepared Exhibit P – 12 – Inquest Report. At 8.45 a.m., in the presence of same witnesses, he seized M.O.2 – blood – stained lungi under Exhibit P-5 – mahazar. He conducted inquest from 9.30 a.m., to 11.30 a.m. on the body of Veerammal in the presence of panchayatars and prepared Exhibit P – 12 – Inquest Report. He sent the body for postmortem through Head Constable 780. P.W. 10 – Dr. Parasakthi conducted post-mortem, on the body of Veerammal at 2.15 p.m. on 28. 2006 and found the following: “Well built body of a female individual with extremities – pale. Hyoid bone and neck structures intact. Following antemortem injuries seen on the body. (1) Abrasions seen on right cheek 4 cm x 3 cm. (2) Head found crushed side to side with multiple fractures of facial banes, skull vault and base of skull-dura found torn and brain found pulpy. Both lungs-NAD C/S-Pale. Heart – Intact, chambers contained few cc of fluid blood. Great vessels – Intact. Coronaries patent. Stomach-Empty, Nil specific smell. Mucosa – NAD. All other internal organs – NAD. C/S-Pale. Bladder – Empty. Uterus – Contained a dead male foetus of 38 cms length (7 – 8 months) with intact placenta. Viscera preserved for chemical analysis and blood for grouping. Genitalia – Intact.” She expressed opinion that the deceased would appear to have died of head injuries and issued Exhibit P – 10 Post-mortem Certificate. After postmortem, the clothes of deceased Veerammal were seized by the Head Constable and produced. P.W.11 – Inspector Balu seized them under Form 95. He gave Exhibit P – 6 – requisition to send the properties for chemical examination and the properties were sent through Exhibit P-7 – letter of the Court. P.W.8-Kmalakshi Krishnamurthy is the Assistant Director of Forensic Lab and Exhibit P-8 is the Biology report and Exhibit P – 13 is the Scrologist’s report. P.W.11 – Inspector Balu examined P.Ws. 1 to 4 on 26. 2006 itself and recorded their statements. He also examined P.W.10-Dr. Parasakthi and recorded her statement and he examined some more witnesses on 9. 2006 and 4.0.2006 and recorded their statements. He arrested the accused-Munirathnam on 9. 2006 at 12.30 pm near the water tank situated at Kattankulathur B.D.O. Office and examined him and recorded his confession statement in the presence of Mohan and Udayakumar and sent the accused for judicial remand. 2006 and 4.0.2006 and recorded their statements. He arrested the accused-Munirathnam on 9. 2006 at 12.30 pm near the water tank situated at Kattankulathur B.D.O. Office and examined him and recorded his confession statement in the presence of Mohan and Udayakumar and sent the accused for judicial remand. P.W.11 – Inspector Balu went on leave and Inspector Mohan completed the investigation and filed final report on 20.12.2006 against the accused. 5. The accused was questioned under Section 313Cr.P.C and the denied complicity. No witness were examined and no documents were marked on his side. 6. The learned Additional Sessions Judge found the accused guilty of the charge framed and convicted and sentenced his as stated above. Challenging the same, the accused has preferred this appeal. 7. Mr. Ashok Kumar, learned senior counsel appearing for the appellant/accused, submits that the case is based on circumstantial evidence and the chain links are not completed properly and there is material contradiction and discrepancy in the testimonies of P.W.1, 2,3 and 7 and P.Ws.1 to 3 are related witnesses and the recovery of M.O.2 Lungi from the occurrence place may not be an incriminating circumstance and it cannot be put against the accused and it cannot be said that the prosecution let in all the circumstances and completed the chain. The learned senior counsel further submits that, in any event, there is evidence to show that there were frequent quarrels between the accused and his wife Veerammal and more particularly there was quarrel a day prior to the occurrence as spoken to by the witnesses and the accused has given a confession statement to the Investigation Officer and the same was recorded in the presence of witnesses and that statement is available in the records of the case though not marked and in that confession statement there are materials to show that the accused had acted in grave and sudden provocation and the confession statement can be used in his favour and Exception (1) to Section 300 IPC would stand attracted and this Court can consider granting him a lenient sentence while altering the conviction. In support of his submission, the learned senior counsel relics on the following decisions rendered by the Division Bench of this Court. (i) Mottai Thevan v. State 1951 MWN CR. 274 (ii) Ganesan, In Re 1973 L.W.(Crl.) 42 and (iii) Mohd. In support of his submission, the learned senior counsel relics on the following decisions rendered by the Division Bench of this Court. (i) Mottai Thevan v. State 1951 MWN CR. 274 (ii) Ganesan, In Re 1973 L.W.(Crl.) 42 and (iii) Mohd. Fazluddin v. State, represented by Inspector of Police (2007) 1 MLJ (Crl) 810: (2007) I LW (Crl.) 61 8. Per contra, the learned Additional Public Prosecutor submits that the accused and the deceased were last seen together by P.Ws.1 to 3 and 7 on the occurrence night and M.O.2 blood stained Lungi of the accused was recovered from the scene of occurrence and immediately after the occurrence, the accused absconded and arrested after seven days and the above circumstances clinchingly proved the guilt of the accused. 9. Veerammal died of injuries sustained in the occurrence is established by the testimony of Post-mortem Doctor P.W.10 Smt. Parasakthi and according to her, the head was found crushed with multiple fractures of facial bones, skull vault and base of skull-dura found torn and brain found pulpy. The doctor expressed opinion that the deceased would appear to have died of head injuries. Exhibit P – 10 is the post-mortem certificate issued by her and from the medical evidence it is clear that Veerammal died of ‘homicidal violence’. 10. To prove the guilt of accused Munirathnam, the prosecution relied on the following circumstances: (i) The accused and Veerammal were last seen together on night of occurrence while sleeping under the tamarind tree, which is their usual place for sleeping; (ii) Recovery of blood stained Lungi of the accused from the scene of occurrence; and (iii) Absconding of the accused immediately after the occurrence and his subsequent arrest after seven days. 11. P.W.1 Chellappan is the father of deceased Veerammal, P.W.2 Bommi and P.W.3 Sakila. Two years prior to the occurrence, Accused Munirathnam and Veerammal got married and there were living together along with P.W.1 to 3 in the house of P.W.1 Chellappan. The accused and Veerammal used to sleep under the tamarind tree in front of the house during night time. P.W.1 Chellappan is the father of deceased Veerammal, P.W.2 Bommi and P.W.3 Sakila. Two years prior to the occurrence, Accused Munirathnam and Veerammal got married and there were living together along with P.W.1 to 3 in the house of P.W.1 Chellappan. The accused and Veerammal used to sleep under the tamarind tree in front of the house during night time. P.W.1 to 3 have stated that a day prior to occurrence there was quarrel between the accused and Veerammal over the purchase of the handcart by the accused out of savings made by Veerammal and at about 10.00 p.m., the accused came home drunk and both, the accused and Veerammal, went to sleep as usual under the tamarind tree and P.W.2 Bommi woke up at 2.00 a.m. and saw the accused and Veerammal sleeping under the tree and at about 5.15 a.m. P.W.1 Chellappan before going to work called Veerammal by name and there was no response and when he went near and removed the bed-sheet, he found M.O.1 Cement slab on the face of Veerammal and she was dead with bleeding injury on the face. P.W.7 Gajalakshmi is the immediate neighbour of Veerammal and she has testified that at 2.00 a.m. on the occurrence, night she was conversing over telephone with regard to the marriage alliance of her son and at that time she saw both, the accused and Veerammal, as usual sleeping under the tamarind tree under cover of bed-sheet. We find no material contradiction in the testimonies of the above witnesses and on accepting the same, it is clear that the accused and Veerammal were last seen together sleeping under the tamarind tree on the occurrence night. 12. The next circumstance relied on by the prosecution is the recovery of M.O.2 blood stained Lungi from the occurrence place. P.W.11 Inspector Balu seized M.O.2 blood stained Lungi from the occurrence place at 8.45 a.m. on 28. 2006 in the presence of P.W.4 Parthasarathy and Kanthalan under Exhibit P-5 Maghazar. P.W.2 Bommi identified M.O.2 blood stained Lungi as worn by the accused on the occurrence night. It was sent for Chemical examination and as per the testimony of P.W.8 the Assistant Director of Forensic Department, ‘B’ group human blood was detected in M.O.2 Lungi and ‘B’ group human blood was detected in the clothes seized from the body of deceased Veerammal. This circumstance implicates the accused to the crime. It was sent for Chemical examination and as per the testimony of P.W.8 the Assistant Director of Forensic Department, ‘B’ group human blood was detected in M.O.2 Lungi and ‘B’ group human blood was detected in the clothes seized from the body of deceased Veerammal. This circumstance implicates the accused to the crime. 13. As per the testimonies of P.Ws.1 to 3, the accused Veerammal was found dead in the morning under the tamarind tree and the accused was missing. The accused could be arrested only after seven days. According to P.W.11 Inspector Balu, he arrested the accused on 9. 2006 at 12.30 p.m. near the water tank in B.D.O. Office, Kattankulathur. Though it is suggested in the cross-examination that the accused had gone to Periyapalayam Temple, the accused did not say so when questioned under Section 313 Cr.P.C. The fact remains that the accused was absconding and it will only highlight his conduct and it is an incriminating circumstance against him. The accused did not offer any explanation as to the circumstances put against him. The above circumstances, according to us are sufficient to hold the accused guilty for the death of his wife. 14. Having regard to the case laws submitted by the learned senior counsel, it has to be seen as to whether the confession statement of the accused given to the Investigation Officer in the presence of witnesses could be used in favour of the accused if there are any materials therein, in his favour. In the decision in Mottai Thevar v. State AIR 1952 Madras 586 a Division Bench of this Court held that though the statement of the accused, given to the police officer during investigation cannot be used against him, yet there is no bar of it being used in his favour. This judgment had been followed by another Division Bench of this Court in 1974 Criminal Law Journal 381 In re. Ganesan (supra), where the learned Judges held that there is no bar to the appellant/accused using the statement in his favour. Recently, another Division Bench of this Court in the decision in Mohd. Fazluddin v. State, rep. by Inspector of Police (supra), followed the above decisions to the same effect. The learned Additional Public Prosecutor is also not disputing this point. We are also inclined to follow the same. 15. Recently, another Division Bench of this Court in the decision in Mohd. Fazluddin v. State, rep. by Inspector of Police (supra), followed the above decisions to the same effect. The learned Additional Public Prosecutor is also not disputing this point. We are also inclined to follow the same. 15. On taking into consideration the contents of the confession statement given by the accused, it has to be seen as to whether he had acted due to sudden provocation having lost his self-control. As per the confession statement, one day prior to occurrence, the accused demanded money from his wife Veerammal to purchase’s hand-cart and Veerammal abused him and threw the currency notes on him and after the purchase of hand-cart, the accused met her to return the balance amount and at that time, Veerammal abused him in filthy language in the presence of others and again in the evening, in front of the tea shop, Veerammal abused him and assaulted him with hands and he also retaliated and Veerammal went home challenging him and at 10.00 p.m., the accused returned hime and he and Veerammal went to sleep as usual under the tamarind tree and he woke up at 4.00 a.m. in the early morning and at that time Veerammal also woke up and abused him by calling and he lost his self-control and took M.O.1 cement slab, which is lying nearby and threw it on her face and left the place. The witnesses examined have spoken about the quarrel between the accused and Veerammal prior to occurrence about the purchase of hand-cart and the confession statement would show that the accused had been over-powered by his emotion throughout the day prior to occurrence and he had committed the act of violence in a fit of uncontrollable anger losing his self-control due to sudden provocation and in such circumstances, we are of the view that Exception (1) to Section 300 IPC gets attracted to the present case and the accused is liable to be convicted for the offence under Section 304 (part 1) IPC and sentence of Rigorous imprisonment for seven years would meet the ends of justice. 16. 16. In the result, the conviction under Section 302 IPC and sentence of Imprisonment for Life imposed on the appellant/accused Munirathnam are set aside and instead, he is convicted for the offence under Section 304 (Part 1) IPC and sentenced to undergo Rigorous Imprisonment for seven years and the fine imposed is retained and the appeal is allowed to the extent indicted above.