JUDGMENT S. NAGAMUTHU, J. The appellant is the sole accused in S.C.No.487 of 2009, on the file of the learned Principal Sessions Judge, Tirunelveli. He stood charged for the offence under Sections 457 and 302 I.P.C. By Judgment, dated 03.02.2011, the Trial Court convicted him under Sections 449 and 302 I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/- in default to undergo rigorous imprisonment for six months for the offence under Section 302 I.P.C. and to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for three months, for the offence under Section 449 I.P.C. The sentences have been ordered to run concurrently. Challenging the said conviction and sentence, the appellant is before this Court, with this Criminal Appeal. 2. The case of the prosecution, in brief, is as follows: (i) The deceased in this case was one Mr. Balakrishnan. He was residing in Rajangapuram in Tirunelveli District. The house of the accused is situated two houses away from the house of the deceased. The wife of the accused is one Mrs. Kaniammal. The accused had suspicion that his wife had illicit intimacy with the deceased. On account of the same, there were frequent quarrels between them. (ii) On the night intervening 06.04.2009 and 07.04.2009, the deceased was sleeping on the open terrace of his house. P.W.1 is the father of the deceased and P.W.2 is his mother. They were residing in the same house along with the deceased. They were sleeping inside the house. P.W.3 is a close relative of the deceased and he was in his house. The accused and his wife were in their house. By about 12.00 midnight, the accused found his wife missing from his house. He went in search of her to the house of the deceased. When he reached the open terrace of the house of the deceased, he found the deceased and the wife of the accused sitting together and talking. This infuriated the accused. He suddenly took out a knife and stabbed the deceased on the left side of the chest and on his back. The deceased fell down. The accused ran away from the place of occurrence followed by the wife of the accused. On hearing the alarm raised, P.W.1 and P.W.2 rushed to the open terrace of the house. He suddenly took out a knife and stabbed the deceased on the left side of the chest and on his back. The deceased fell down. The accused ran away from the place of occurrence followed by the wife of the accused. On hearing the alarm raised, P.W.1 and P.W.2 rushed to the open terrace of the house. They witnessed the entire occurrence, in which, the accused stabbed the deceased. P.W.3, a neighbour also rushed to the place of occurrence. He found the deceased dead. Then, P.W.1 went to the Police Station to make a complaint. P.W.8 was the Sub Inspector of Police, Alwarkurichi Police Station. He received the written complaint from P.W.1 on 07.04.2009 and registered a case in Crime No.48 of 2009, under Sections 457, 294(b) and 302 I.P.C. at 02.00 a.m. Ex.P.1 is the complaint and Ex.P.8 is the First Information Report. He forwarded both the documents to the Court and handed over the Case Diary to the Inspector of Police for investigation. (iii) P.W.12 took up the case for investigation on 07.04.2009 and proceeded to the place of occurrence at 02.30 a.m. and prepared an Observation Mahazer and a Rough Sketch in the presence of P.W.4 and another witness. Then, he recovered bloodstained earth and sample earth from the place of occurrence under a mahazer. He conducted inquest on the body of the deceased and forwarded the body for postmortem. (iv) P.W.7, an Assistant Surgeon at the Government Hospital, Ambasamudram, conducted autopsy on the body of the deceased at 12.00 Noon on 07.04.2009. He found the following injuries: “Ribs: xxx ; Heart: Pericardial clots (500-1000g of blood clots) liver-pale, stomach (partially digested food particles). (4 x 1 x 1 cm)”. Ex.P.7 is the Postmortem Certificate. According to him, the injuries on the deceased would have been caused by a weapon like M.O.1, knife. He gave opinion that the deceased would appear to have died of shock and haemorrhage due to the injuries. (v) P.W.12 continued the investigation and forwarded the material objects to the Court. Since, he was transferred, he handed over the investigation to his successor. (vi) P.W.13 took up the case for investigation on 22.04.2009. The accused had surrendered before the Court. He took police custody of the accused on 22.04.2009 at 06.00 p.m. While in the Police Station, he gave a voluntary confession in the presence of P.W.5 and another witness. Since, he was transferred, he handed over the investigation to his successor. (vi) P.W.13 took up the case for investigation on 22.04.2009. The accused had surrendered before the Court. He took police custody of the accused on 22.04.2009 at 06.00 p.m. While in the Police Station, he gave a voluntary confession in the presence of P.W.5 and another witness. In the said confession, he disclosed the place, where he had hidden the knife. In pursuance of the same, he took P.W.13 and the witnesses to Rajangapuram and produced the knife (M.O.1) from the hide-out. P.W.13 recovered the same under a mahazer. Then, he handed over the investigation to P.W.14, his successor. He examined few more witnesses, collected the medical records and finally laid charge sheet against the accused. 3. Based on the above materials, the Trial Court framed charges as detailed in the first paragraph of this Judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as, 14 witnesses were examined and 15 documents were exhibited, besides 6 Material Objects. 4. Out of the said witnesses, P.W.1 and P.W.2 are the eyewitnesses to the occurrence, who have very vividly spoken about the occurrence. P.W.3, a neighbour, has stated that he came to the place of occurrence on hearing the alarm raised and he found the deceased dead. Thus, he had not seen the occurrence. P.W.4 has spoken about the Observation Mahazer prepared and the recovery of material objects from the place of occurrence. P.W.5 has spoken about the recovery of M.O.1 on the disclosure statement made by the accused. P.W.6, an official from the Tamil Nadu Electricity Board, has stated that on 06.04.2009, there was no electricity failure at the place of occurrence. P.W.7 has spoken about the postmortem conducted by him and his final opinion regarding the cause of death. P.W.8 has spoken about the registration of the case on the complaint of P.W.1. P.W.9 has stated that he carried the First Information Report from the Police Station and handed over the same to the learned Judicial Magistrate No.IV, Tirunelveli at 07.00 a.m. on 07.04.2009. P.W.10, Mr. Mariappan, has spoken about the fact that he carried the dead body from the place of occurrence to the hospital for postmortem. P.W.9 has stated that he carried the First Information Report from the Police Station and handed over the same to the learned Judicial Magistrate No.IV, Tirunelveli at 07.00 a.m. on 07.04.2009. P.W.10, Mr. Mariappan, has spoken about the fact that he carried the dead body from the place of occurrence to the hospital for postmortem. P.W.11 is the Head Clerk of the Judicial Magistrate's Court, who has stated that he forwarded the material objects for Chemical Examination on the orders of the learned Judicial Magistrate. According to the Report, human blood was found on all the material objects. P.W.12 to P.W.14 have spoken about the investigation done. 5. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. However, he did not choose to examine any witness on his side nor to mark any document. His defence was a total denial. Having considered all the above materials, the Trial Court convicted the appellant and punished him accordingly. That is how, the appellant is before this Court with this Criminal Appeal. 6. We have heard the learned counsel appearing for the appellant, the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully. 7. The learned counsel for the appellant would submit that P.W.1 and P.W.2 would not have seen the occurrence at all. According to him, since the occurrence had takenplace at the terrace of the house of the deceased, quite naturally P.W.1 and P.W.2 would be sleeping inside the house and they would not have witnessed the occurrence at all. He would further submit that though the First Information Report was registered at 02.00 a.m. on 07.04.2009, the same has reached the hands of the learned Magistrate only at 07.00 a.m., for which, there is no explanation at all. This delay also assumes much importance, the learned counsel submitted. He would next contend that the dead body would have been seen in the morning on 07.04.2009 and thereafter only the First Information Report would have been registered as an afterthought. Thus, according to the learned counsel, the prosecution has failed to prove the case beyond reasonable doubts. He would further submit that in the alternative, the act of the accused would fall only under Section 304 Part II I.P.C. and not under Section 302 I.P.C. 8. Thus, according to the learned counsel, the prosecution has failed to prove the case beyond reasonable doubts. He would further submit that in the alternative, the act of the accused would fall only under Section 304 Part II I.P.C. and not under Section 302 I.P.C. 8. The learned Additional Public Prosecutor would however oppose this appeal. According to him, the presence of P.W.1 and P.W.2 cannot be doubted, as they have categorically stated that they were attracted by the alarm raised by the deceased and thus they witnessed the entire occurrence. He would further submit that there is absolutely no delay in either preferring the complaint or forwarding the same to the Court. He would further add that the recovery of M.O.1 would further strengthen the case of the prosecution. Thus, according to the learned Additional Public Prosecutor, the prosecution has proved the case beyond reasonable doubts. He would further add that the act of the accused would squarely fall within the ambit of Section 302 I.P.C. Thus, according to him, the Judgment of the Trial Court does not require any interference at the hands of this Court at all. 9. We have considered the above submissions. 10. The prosecution relies mainly on the evidence of P.W.1 and P.W.2, who claimed to be eye-witnesses. The occurrence had takenplace on the open terrace of the house of P.W.1 and P.W.2. Since the occurrence was during night hours, it would have been quite natural that P.W.1 and P.W.2 would have been present in their house. They have stated that by about 12.00 midnight, they heard the alarm raised from the terrace of the house, where the deceased was sleeping alone. When they rushed towards the terrace, they found the accused stabbing the deceased, where the wife of the accused was also present. Though, P.W.1 and P.W.2 have been subjected to lengthy cross-examination, nothing has been elicited to discredit their evidence. In our considered view, the presence of P.W.1 and P.W. 2 cannot be doubted at all. Similarly, their evidence that it was, this accused, who caused the stab injury on the deceased, also cannot be doubted. The learned counsel for the appellant would submit that there was enormous delay in forwarding the First Information Report to the Court. But, we find no force in the said argument. Similarly, their evidence that it was, this accused, who caused the stab injury on the deceased, also cannot be doubted. The learned counsel for the appellant would submit that there was enormous delay in forwarding the First Information Report to the Court. But, we find no force in the said argument. The occurrence was at 12.00 midnight and the First Information Report has reached the hands of the learned Magistrate at 07.00 a.m. in the morning. The Constable, who carried the First Information Report, has explained away the delay. The delay in our considered view, is not enormous and therefore there is no reason to doubt the case of the prosecution on this ground. Though, it is contended by the learned counsel for the appellant that the deceased would have been found dead only in the morning, we do not find any reason to accept the theory propounded by the learned counsel for the accused. We firmly believe that P.W.1 and P.W.2 would have witnessed the deceased being stabbed by the accused and thus it was this accused, who only caused the death of the deceased. The above conclusion is fortified by the recovery of M.O.1, aruval, at the instance of the accused. A cumulative analysis of all the evidences available on record, would go to show that the death of the deceased was a homicide and the same was caused only by this accused. 11. Now, the next immediate question which arises for consideration is by the said act “what was the offence committed?” The learned counsel for the appellant would submit that the act of the accused would fall within the ambit of Section 304 Part I I.P.C. alone. It cannot be stated that the accused had any premeditation to cause the death of the deceased. It is in evidence that the accused went in search of his wife, because she was found missing from his house. Since the accused had suspicion earlier that she had illicit intimacy with the deceased, the accused went in search of his wife to the house of the deceased. He found his wife in the company of the deceased on the terrace. Quite naturally, the accused would have been provoked by the said conduct of the deceased in being in the company of the wife of the accused, that too, at 12.00 midnight. He found his wife in the company of the deceased on the terrace. Quite naturally, the accused would have been provoked by the said conduct of the deceased in being in the company of the wife of the accused, that too, at 12.00 midnight. There is every reason to believe that the deceased and the wife of the accused would have been found exchanging sexual overtures. At any rate, the presence of the wife of the accused and the deceased together at 12.00 midnight that too on the terrace, would go to indicate the sexual intent on the part of both. Having seen the same, quite naturally, the accused would have lost his self-control out of the said provocation. It is only, at that stage, having last his self-control, the accused had caused the stab injury on the deceased. For a villager to carry the knife in his waist, is not something uncommon. After having stabbed the deceased, the accused fled away from the scene of occurrence. The presence of the wife of the accused along with the deceased at the crucial time of occurrence, has been spoken by P.W.1 and P.W.2 also. Therefore, we hold that the act of the accused would squarely fall within the ambit of Exception (1) of Section 300 I.P.C. At the same time, the injuries on the deceased were the intended injuries, which were sufficient in the ordinary course of nature to cause death. Thus, the act of the accused would fall within the third limb of Section 300 I.P.C. and since it falls again under Exception (1) to Section 300 I.P.C., the accused is liable to be punished under Section 304 Part I I.P.C. 12. Now, turning to the quantum of punishment, the accused is hardly aged 48 and he has got two children. He has to take care of the entire family. He is a poor man. He has got no bad antecedents. After the occurrence also, he has not committed any crime. There are lot of chances for his reformation. The occurrence itself was not a pre-meditated one and the same was on account of the loss of self-control due to the suspicious position, in which, the deceased was found in the company of the wife of the accused. After the occurrence also, he has not committed any crime. There are lot of chances for his reformation. The occurrence itself was not a pre-meditated one and the same was on account of the loss of self-control due to the suspicious position, in which, the deceased was found in the company of the wife of the accused. Having regard to all these mitigating as well as aggravating circumstances, we are of the view that sentencing to undergo rigorous imprisonment for 6 years and to pay a fine of Rs.5,000/-, would meet the ends of justice. So far as the offence under Section 449 is concerned, the accused did not enter into the house of the deceased, with pre-meditation to commit any murder. He went on to the terrace of the house of the deceased only in search of his wife. Therefore, the said act of the accused going to the terrace of the house, would not attract an offence of house trespass. Therefore, the conviction under Section 449 I.P.C. is liable to be set aside. 13. In the result, the Criminal Appeal is party allowed; the conviction and sentence imposed on the appellant/accused under Section 302 I.P.C. by the learned Principal Sessions Judge, Tirunelveli, made in S.C.No.487 of 2009, dated 03.02.2011, is set aside and instead, he is convicted under Section 304 Part I I.P.C. and sentenced to undergo rigorous imprisonment for 6 years and to pay a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for 4 weeks. The conviction and sentence imposed on the appellant/accused under Section 449 I.P.C. is set aside and he is acquitted of the said charge. Bail bond executed by the appellant and the sureties shall stand cancelled. The period of sentence already undergone by the appellant/accused shall be set off under Section 428 Cr.P.C. The Trial Court shall secure the appellant/accused and commit him in prison so as to serve out the remaining period of sentence. 14. Before parting with this case, we would like to appreciate the excellent service rendered by Mr.G.Karuppasamy Pandian, learned counsel, who has been appointed as Legal Aid Counsel. The Legal Services Authority attached to this Bench, is directed to pay his remuneration.