JUDGMENT Ms. CHTTRA VENKATARAMAN, J. (1) THE appellant/accused is on appeal against the judgment dated 23.12.2010 of the learned Principal Sessions Judge, THEni in S.C. No. 78 of 2009 convicting him under Section 302 I.P.C., and sentencing him to undergo imprisonment for life and to pay a fine of RS 1,000/- in default to pay the fine amount to undergo further rigorous imprisonment for one year. (2) THE case of the prosecution is that the appellant/accused suspecting the fidelity of his wife committed the murder of the deceased at about 1.30 a.m. on 29.3.2009 by attacking her with an Aruval on the back side of the neck and indiscriminately attacked her and thereby caused the death. In support of its case, the prosecution let in evidence through P.Ws. 1 to 17, marked Exhibits P-l to P-14 and produced M.Os.l to 6. On questioning under Section 313 of the Cr.P.C, the appellant/accused denied his complicity in the offence. The appellant/accused neither examined any witness nor marked any document. (3) THE facts of the case, in brief, are as follows: P.Ws.1 and 2 are the parents of the deceased. P.W.3 is the Son of the deceased and accused. P.W.5 is the niece of P.W.1 and P.Ws.6 and 7 are relatives to the accused and the deceased. THE deceased and the accused were married 15 years before the date of occurrence. THE deceased and the accused had a daughter and two sons. Suspecting the fidelity of the deceased, while the deceased and the accused were sleeping on the terrace of their house, using an aruval, the accused attacked the deceased indiscriminately. THE son of the deceased - Chinnakaruppasamy (P.W.3) and another person - Vignesh (P.W.16) were there. P.W.5 on receipt of an information from P.W.6 over a cell phone informed P.W.1 that the accused had attacked the deceased. Immediately thereupon, P.W.1 went to Ammachiyapuram, wherein the deceased was living with the accused. On seeing the body of his daughter, he went to K. Vilakku Police Station and lodged a complaint - Exhibit P-1. P.W.15 - Paramasivam, Sub Inspector of K. Vilakku Police Station, received the complaint on 29.3.2009 at 6. am and registered a case in Crime No. 91 of 2009 for the offence under Section 302 I.P.C. Exhibit P-12 is the printed F.I.R. (4) P.W.17 took up the investigation and went to the scene of occurrence in Ammachiyapuramat at 6.45 am. P.W.15 - Paramasivam, Sub Inspector of K. Vilakku Police Station, received the complaint on 29.3.2009 at 6. am and registered a case in Crime No. 91 of 2009 for the offence under Section 302 I.P.C. Exhibit P-12 is the printed F.I.R. (4) P.W.17 took up the investigation and went to the scene of occurrence in Ammachiyapuramat at 6.45 am. He prepared Observation Mahazhr - Exhibit P-2 and Rough Sketch - Exhibit P-13. At 8. am, he recovered he recovered the blood stained lime morter - M.O.2 and sample lime morter - M.O.3 in the presence of witnesses under M.Os.2 and 3. In the presence of same witnesses, on the same day between 8.15 a.m., and 10.15 a.m., he conducted Inquest over the body of the deceased and Exhibit P-14 is the Inquest Report. P.W.12 - Kannan, who was assisting the Sub Inspector in the said case, came to the occurrence spot and took the body of the deceased from Ammachiyapuram to K. Vilakku Government Hospital and handed over the same to Dr. Aravali. Finding Ramuthai dead, the body was kept in the mortuary. Thereafter, he made a requisition to Dr. Arunkumar - P.W. 13 to conduct the autopsy. He recovered the blood-stained biscuit colour saree, blood-stained and torn polyester blouse in maroon colour, blood-stained blue colour torn in-skirt and handed over the same before the Sub Inspector and the same was thereafter produced before the Court and sent for chemical examination. P.W.13 - the Assistant Professor, Department of Forensic Science conducted autopsy on the body of the deceased on 29.3.2009 at 1.30 p.m. Exhibit P-14 is the post mortem report which noted the following injuries: 1. A transverse - oblique deep cut injury seen on the front and right side of neck measuring 23 cms in length with wide gapping. It is found cutting the underlying muscles, vessels, C4 vertebrae, and upper part of thyroid cartilage. The wound is situated 7 cms below the middle of chin, 7 cms above the suprasternal notch. The right end is 5 cms below the right mastoid process. 2. A cut injury seen on back of lower neck on the right side, measuring 5 cms x 3 cms muscle deep. 3. A cut injury seen 4 cms below injury no.2 measuring 4 cms x 2 cms x muscle deep. 4. The right end is 5 cms below the right mastoid process. 2. A cut injury seen on back of lower neck on the right side, measuring 5 cms x 3 cms muscle deep. 3. A cut injury seen 4 cms below injury no.2 measuring 4 cms x 2 cms x muscle deep. 4. A cut injury seen 3 cms below injury no.3, measuring 4 cms x 2 cms x muscle deep. 5. A cut injury seen on right occipital area of scalp, 3 cms above occipital protuberance, measuring 5 cms x 3 cms x bone deep. 6. A cut injury seen on right occipital area of scalp 8 cms above occipital protuberance, measuring 3 cms x 2 cms x bone deep. 7. A cut injury seen on right occipital area of scalp 12 cms above from occipital protuberance, measuring 2 cms x 1 cm x bone deep. 8. A cut injury seen on left temporo-parital area of scalp 3 cms above left mastoid process, measuring 2 cms x 1 cm x bone deep. 9. A cut injury seen on temporo-parital area of scalp 5 cms above left mastoid process, measuring 2 cms x 1 cm x bone deep. 10. A cut injury seen on temporo parital area of scalp 7 cms above left mastoid process, measuring 2 cms x 1 cm x bone deep. 11. A cut injury seen on center of left cheek measuring 3 cms x 2 cms x muscle deep. 12. A cut injury seen 2 cms below the injury No. 11 on center of left cheek measuring 3 cms x 2 cms x muscle deep. 13. A cut injury seen 2 cms below left lower lip, measuring 4 cms x 2 cms x muscle deep. 14. A cut injury seen on right lower lip, measuring 2 cms x 1 cm x 1 cm. 15. A cut injury seen on upper part of outer aspect of right shoulder joint, 10 cms from tip of acromin process, measuring 4 cms x 2 cms x muscle deep. 16. A cut injury seen on back of right forearm, 6 cms above right wrist joint, measuring 9 cms x 3 cms x bone deep. 17. A cut injury seen on back of right forearm, 8 cms above right wrist joint, measuring 6 cms x 2 cms x bone deep. 18. 16. A cut injury seen on back of right forearm, 6 cms above right wrist joint, measuring 9 cms x 3 cms x bone deep. 17. A cut injury seen on back of right forearm, 8 cms above right wrist joint, measuring 6 cms x 2 cms x bone deep. 18. A cut injury seen on distal part of right thumb, measuring 3 cms x 2 cms x muscle deep. 19. A cut injury seen 2 cms below the right little finger, measuring 4 cms x 2 cms x bone deep. 20. A cut injury seen on back of left elbow joint 2 cms above left elbow joint, measuring 3 cms x 2 cms x 1 cm. 21. A cut injury seen on base of left thumb, measuring 5 cms x 1 cms x muscle deep. 22. A cut injury seen on center of left ring finger, measuring 3 cms x 1 cm x muscle deep. 23. A cut injury seen on inner aspect of left wrist joint, measuring 5 cms x 3 cms x bone deep. 24. Abrasion of size 4 cms x 3 cms seen on left cheek 25. Abrasion of size 6 cms x 4 cms seen on right forehead 26. Abrasion of size 4 cms x 3 cms seen on right knee joint 27. Abrasion of size 5 cms x 4 cms seen on left knee joint. Opining that the deceased would appear to have died of shock and haemorrhage due to external injury No. 1 and its corresponding internal injuries and cumulative effects of all cut injuries, he pointed out that the injuries could have been caused by a weapon like M.O.1. (5) P.W.17 - the Investigating Officer enquired further witnesses and recorded their statements. On 30.3.2009 he went to Ammachiyapuram and examined further witnesses and recorded their statements. Further, based on the information obtained, he arrested the accused at 11.30 a.m., on the same day near Vaigai bridge. In the presence of a Village Administrative Officer and his assistant, the accused gave a confession statement. P. W. 17 recorded the confession statement of the accused and Exhibit P-7 is the admissible portion of the confession statement. On the basis of the confession statement, the appellant/accused produced the aruval from a motor room. The said aruval M.O.I was recovered under Exhibit P-8. P. W. 17 recorded the confession statement of the accused and Exhibit P-7 is the admissible portion of the confession statement. On the basis of the confession statement, the appellant/accused produced the aruval from a motor room. The said aruval M.O.I was recovered under Exhibit P-8. Thereupon, P. W. 17 produced the accused before the Court and he was remanded to judicial custody. On 31.3.2009 he showed M.O.1 before the Doctor and after conducting autopsy, he recovered the clothes worn by the deceased viz., M.O.4 - Saree, M.O.5 - Jacket, M.O.6 - Skirt under Form 95. He sent the recovered material objects to the Court for forwarding the same to chemical examination. On 2.5.2009, he went to the Government Hospital, Then and examined the Doctor, who had conducted autopsy on the body of the deceased and recorded his statement. On 22.5.2009, he obtained the Serologist's Report - Exhibit P-6, which pointed out to the presence of human blood of "A" Group in the aruval as well as in the Saree and skirt worn by the deceased. After completion of the investigation, he forwarded the final report to the Court. (6) LEARNED counsel appearing for the appellant pointed out that even though P.Ws.3 and 16 were stated to be on the terrace, P.W.16 turned hostile and the evidence of P.W.3 did not show that the said witness was an eye witness to the occurrence. He pointed out that even according to P.W.3, he had no occasion to witness the occurrence. Pointing out to the sustained provocation by the conduct of the deceased, learned counsel submitted that the conviction and sentence is wholly unsustainable. Per contra, the learned Additional Public Prosecutor appearing for the State pointed out to the evidence of the Doctor - P.W.13 with reference to Exhibit P-11 - Post Mortem Certificate as well as to the Serologist's Report Exhibit P-6, pointing out to the presence of human blood A Group, which was found in the saree, jacket and in-skirt worn by the deceased. Thus going by the confession statement of the accused Exhibit P-7 leading to the recovery of M.O.I - billhook, it is clear that the deceased died of homicidal violence caused by the accused. Thus going by the confession statement of the accused Exhibit P-7 leading to the recovery of M.O.I - billhook, it is clear that the deceased died of homicidal violence caused by the accused. Referring to the evidence of P.W.3, the son of the deceased and the accused, who happened to be the eye-witness to the occurrence, learned Additional Public Prosecutor submitted that no exception could be taken to the prosecution case and to the judgment of the Court below accepting the case of the prosecution. He also took us through the evidence of P.W.3 to point out the quarrel just prior to the occurrence. In the above circumstances, the judgment of the Court below is justified and the prosecution has proved its case. (7) HEARD learned counsel appearing on either side and perused the material on record. (8) THE deceased and the accused are husband and wife married for 15 years. THEy had two sons and one daughter. P. W.3 is the son of the deceased and the accused. THE daughter of the deceased was sleeping with the father of the accused in the ground floor. On the date of occurrence, the deceased and the accused were on the terrace, along with them was the son - P.W.3 and P.W.16, who happens to be the nephew of the accused, who had come there to sleep with P. W.3. P. Ws. 1 and 2 are the parents of the deceased. A reading of the evidence of P.W.1 shows that the accused attacked the deceased suspecting her fidelity and the deceased met P.W.1 two months prior to the date of occurrence complaining him as regards the accused suspecting her character and thus ill-treating her. P.W.1, however, advised the deceased to stay with her husband since they had children. P.W.2 is the mother of the deceased, who however spoke about the good relationship that existed between the deceased and the accused. Referring to a wedding in which the deceased and the accused participated, the said witness spoke about the daughter complaining about the accused ill-treating her, to which she advised her and thereupon the accused and the deceased happily returned back to their home. Barring these two witnesses speaking about the cordiality existing between the deceased and the accused, we have no other evidence as regards the nature of relationship existing between the husband and wife. Barring these two witnesses speaking about the cordiality existing between the deceased and the accused, we have no other evidence as regards the nature of relationship existing between the husband and wife. P.W.3 is the son, who was there with the deceased and the accused in the terrace. Pointing out that the deceased and the accused were fighting at about 1.00 a.m., he came down and complained to his grandfather, who was sleeping in the ground floor that his parents were fighting. THEreupon the father of the accused came up to the terrace and advised them not to fight. THEreupon he came down and they all went to sleep. However, on hearing the noise, P.W.3 got up only to find his mother with cut injuries and when he raised an alarm, people came up to see his mother in a pool of blood. A reading of the evidence of P. Ws. 1,2 and 3 thus reveal that on the date of occurrence and some time prior there to, there were differences and quarrel between the deceased and the accused. As evident from P. Ws. 1 and 2's evidence, one can make out that the quarrel between the deceased and the accused was on account of the accused suspecting the fidelity of the deceased. P.W.4, who is a resident of the same village and known person to the deceased as well as the accused and who happens to be the brother-in-law of the accused, saw the accused on that night going with the aruval on his hand along the river-bed. When he called upon the accused to stay back, the accused warned him and went away and he returned back home. He heard about the accused attacking the deceased with aruval. Thus the evidence herein along with Exhibit P-11 as well as Exhibit P-6 clearly prove the offence committed by the accused using the aruval to attack the deceased and thereby cause her death. The only question that remains for us to consider is as to whether the circumstance spoken to herein would point out to the commission of offence, punishable under Section 302 I.P.C at all or not. The only question that remains for us to consider is as to whether the circumstance spoken to herein would point out to the commission of offence, punishable under Section 302 I.P.C at all or not. A reading of the admissible portion of the confession statement of the accused in Exhibit P-7 pointed out that the deceased had relationship with one Raja, co-brother of the accused, six months prior to the occurrence and on seeing them in a compromising position, the accused warned the deceased, to which the deceased promised that she would not behave like that in future. However, the deceased continued her relationship with the said Raja. A day prior to the date of occurrence, when the accused returned home, he found Raja coming out of the home and when he enquired the deceased, she merely stated that Raja came and just went away. However, the children told the accused that Raja was there for some time. Realizing that the deceased had not reformed herself to lead a good life and so too in future, and on the night once again when there was a quarrel between the deceased and the accused, thus enraged by the conduct of the deceased, and upset by the conduct of the deceased, the accused attacked her with the aruval, thereby caused her death. (9) LEARNED counsel for the appellant pointed out that the facts herein reveal that this is a case of sustained provocation. In the background of the above said facts, the conviction and sentence recorded are wholly unsustainable. Thus, learned counsel placed reliance on the decisions Aiyyasamy v. State of Tamil Nadu Rep. by the Inspector of Police, Podanur Police Station 2005 (1) LW (Crl) 299 and Chandran, In Re 1988 LW(Crl) 113: (1987) 1 MLJ(Crl) 655 (Mad). (10) THE question is as to whether the confession statement thus given by the accused to the police officer could be looked into for the purpose of charging the accused with an offence under Section 302 I.P.C. came up for consideration in the decision Murli Alias Denny v. State of Rajasthan AIR 1994 SC 610 : (1995) SCC (Crl) 57. The Honourable Apex Court in the decision Murli Alias Denny v. State of Rajasthan (supra), pointed out that when the accused acted on a sudden provocation, Exception 1 to Section 300 I.P.C stood attracted. The Honourable Apex Court in the decision Murli Alias Denny v. State of Rajasthan (supra), pointed out that when the accused acted on a sudden provocation, Exception 1 to Section 300 I.P.C stood attracted. Referring to the admission found in the statement in favour of the accused, the Apex Court pointed out that when there is no evidence disclosing as to how the quarrel ensued and attack took place, the relevancy of the confessional statement could be taken into account to find out whether the case falls under Exception 1 to Section 300 I.P.C. The sum and substance is that Section 25 of the Indian Evidence Act would assume relevance in a situation like this that a confession given by the accused to the police officer could be referred to for the purposes of finding out the real cause or as to how the quarrel ensued so as to benefit the accused regarding conviction and sentence. In similar line to the decision of the Honourable Apex Court, this Court, in the decision Sangiah v. State Rep. by the Inspector of Police (2007) 2 MLJ (Crl) 1852 : (Crl.A. No. 1004 of 2003 dated 7.12.2006) observed as to the permissibility of looking into the confession statement recorded under Section 25 or 27 of the Indian Evidence Act in order to decide the nature of offence said to have been committed by the accused. This Court pointed out to the materials available as well as to the confession of the accused recorded by the police under Section 25 of the Indian Evidence Act, apart from the recovery of a material weapon used to hold that the mental background created by the previous act of the victim could be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. This Court further pointed out that the term "self control" in Section 300 I.P.C. is a subjective phenomenon and it can be inferred from the surrounding circumstances of a given case. This Court referred to the principle of sustained provocation to find out whether the last act of provocation upon which the accused caused the death was sufficiently grave so as to deprive him of the power of self control. This Court referred to the principle of sustained provocation to find out whether the last act of provocation upon which the accused caused the death was sufficiently grave so as to deprive him of the power of self control. This Court referred to the decision of the Apex Court K.M. Nanavati v. State of Maharashtra AIR 1962 SC 605 : (1962) 1 MLJ (Crl) 531 as to the principles laid down therein regarding Exception (1) to Section 300 I.P.C. and on facts, held that apart from the evidence available, the confession statement of the accused recorded by the police under Section 25 of the Indian Evidence Act for the purpose of recovery of M.O.I knife clearly pointed out that even on the date of occurrence, there was a quarrel between the accused and the deceased resulting in the fatal stab on the deceased. (11) THE facts in the present appeal is no different from the decided case as referred to above. Thus, applying the law declared by this Court as to whether there was nurturing or sustained provocation so as to result in the subsequent act of the accused using self-control, as already pointed out, that on the very same day the deceased had a chance to see Raja coming out of the house and that the accused's children, on enquiry, informed the accused that the said Raja was inside the house for quite some time. Irked by the conduct of the deceased betraying him, there was a quarrel between the deceased and the accused during night time when the accused attacked the deceased with an aruval. THE quarrel between the accused and the deceased, as spoken to in the evidence of P.W. 1 and P.W.2 and P.W.3 referring to the quarrel in the night, the confession statement made by the accused herein Exhibit P-7, clearly point out that the accused had a sustained provocation nurtured for a long period that the frustration reached the end of the breaking point when the accused caused the murder of the deceased. (12) THUS going by the above facts and the law declared on the aspect of the permissibility of looking into the confession recorded under Section 25 of the Indian Evidence Act to decide on the nature of the offence committed by the accused, we have no hesitation in accepting the plea of the accused that the case herein falls under Section 304(1) I.P.C., by applying Exception 1 to Section 300 I.P.C, thus inviting a sentence of seven years rigorous imprisonment. For the aforesaid reasons, the conviction and sentence imposed on the appellant/accused by the judgment dated 23/12/2010 of the Principal Sessions Judge, Theni in S.C. No. 78 of 2009 under Section 302 I.P.C., are set aside and instead, the appellant is convicted under Section 304(1) I.P.C., and sentenced to undergo seven years rigorous imprisonment and to pay a fine of RS 1,000.00 in default to pay the fine amount to undergo further rigorous imprisonment for one year. If the appellant/accused already paid the fine amount, the same shall be adjusted. With the above modifications, this criminal appeal is partly allowed. The connected M.P.(MD)No.1 of 2011 is closed. Appeal allowed.