JUDGMENT : The accused, Tirupathi, son of Gurusamy, who had been convicted and sentenced for commission of offence punishable under Section 302 IPC by the Principal District and Sessions Court, Virudhunagar District at Srivilliputhur and sentenced to undergo Life imprisonment and fine of Rs.10,000/- in default, one year Simple Imprisonment in S.C.No.21 of 2011 by judgment dated 21.11.2019, has filed the present Criminal Appeal. 2. The appellant/accused and his wife P.W.7/Muneeswari were residing at Panankulam in Virudhunagar District. It is the case of the prosecution that the appellant suspected his wife/Muneeswari (P.W.7) to have illicit relationship with Muthukaruppan, the deceased. 2.1. It is the further case of the prosecution that owing to this allegation, there were frequent quarrels between the accused and his wife/Muneeswari (P.W.7). 2.2. It had also been stated that three months prior before the incident complained of in this case, in the night at 9.00 p.m., the accused had seen the deceased Muthukaruppan coming out of his house and had picked up a quarrel with the deceased Muthukaruppan. 2.3. It is further stated that on 29.06.2010 at around 11.45 p.m., when the accused went to his house and knocked at the door, Muthukaruppan came rushing outside from the house wearing a lungi. The accused then picked up a wooden stick measuring about 2 ½ feet in length and chased Muthukaruppan and hit him on his head and on the scalp. Muthukaruppan fell down and died. Accordingly, the accused was charged with commission of offence punishable under Section 302 IPC. 2.4. The accused denied the charge and claimed to be tried. Accordingly, the prosecution examined P.W.1 to P.W17 witnesses and marked Exhibits Ex.P.1 to Ex.P16 documents. The prosecution also produced the M.O.1 to M.O.6 material objects. 2.5. On conclusion of trial, the accused was questioned under Section 313 Cr.P.C. and his statements were recorded. The learned Trial Judge/ Principal District and Sessions Judge, Virudhunagar District at Srivilliputhur, had found that the charge had been proved beyond reasonable doubt and therefore, convicted the appellant for offence punishable under Section 302 IPC and sentenced him to undergo Life imprisonment and fine of Rs.10,000/- in default, simple imprisonment for a period of one year. Questioning such conviction and sentence, the present appeal had been filed. 3. The prosecution to prove the charges had examined P.W. 1/Kandhan, the father of the deceased. Questioning such conviction and sentence, the present appeal had been filed. 3. The prosecution to prove the charges had examined P.W. 1/Kandhan, the father of the deceased. In his statement, he stated that normally in the night hours at around 9.00 p.m., his son Muthukaruppan would come home to eat dinner but on 29.06.2010, he did not come to eat dinner and therefore, he (the witness) along with P.W.2, who is his other son went in search of Muthukaruppan. 4. At that time, they heard a cry and when they ran towards that particular direction, they saw the accused/Tirupathi hitting Muthukaruppan on the head with a (cUl;L fk;g[) (wooden stick). He also saw his son falling down. He further stated that even after he fell down, the accused/Tirupathi hit his son all over his body and there was a blood flow. He stated that he and his other son/P.W.2 went to the place of occurrence. They found Muthukaruppan dead. 5. In this connection, the father of the deceased/P.W.1 had given a complaint to the Krishnankovil Police Station by around 1.30 a.m. in the night. The complaint was marked as E.P.1. The police also came there at 1.30 a.m. and he was also examined. The body was taken in an Ambulance to the Government Hospital. 6. This witness is said to be a direct eye witness for the incident. The witness was also cross-examined and during cross- examination, he stated that around 9.00 p.m., he had heard a big noise and when he went to that particular place, he saw the accused hitting his son. He denied that there was an illicit relationship between his son and the wife of the accused for the past six years. He stated that in his complaint he had never stated that his son had a relationship with the wife of the accused. He also stated that he had been examined by the Investigating Officer and his statement had been recorded. 7. The prosecution further examined P.W.2, Guruvaiah, who is the brother of the deceased and the other son of P.W.1. He stated that on 29.06.2010, in the night at 11.45 p.m., he and P.W.1 and Karuppasamy, son of Vellaiyan and Karuppasamy, son of Mariappan, were all talking together. At that time, they heard a cry calling out. They went running towards the direction where they heard the sound. He stated that on 29.06.2010, in the night at 11.45 p.m., he and P.W.1 and Karuppasamy, son of Vellaiyan and Karuppasamy, son of Mariappan, were all talking together. At that time, they heard a cry calling out. They went running towards the direction where they heard the sound. They saw the deceased Muthukaruppan running, wearing only his lungi and behind him, the accused chasing him. Thereafter, he stated, that he saw the accused hitting Muthukaruppan on the left hand side of the head and thereafter, on all the places in the head. He stated that Muthukaruppan fell down and the accused ran away along with the stick. 8. Thereafter, they had given a complaint to the Krishnankovil Police Station. He was also examined by the respondent Police. During cross-examination, he denied that at that particular time, the wife of the accused was present. 9. These two witnesses were the prime witnesses who had been examined by the prosecution to prove the charge against the accused, that accused chased the deceased with a wooden stick in his hand and hit the deceased on his left side head and when the deceased fell down, he caused further blows on the deceased causing instant death. 10. The prosecution also examined Karuppasamy, son of Mariappan and Karuppasamy, son of Vellaiyan as P.W.3 and P.W.4 respectively. They had been mentioned by P.W.2 as having witnessed the occurrence. However, they did not support the case of the prosecution and were declared hostile. 11. Thereafter, the complaint Ex.P.1 given by P.W.1 and P.W.2 was taken on record by P.W.16/Tmt.Anitha, Sub-Inspector of Police, who had registered the FIR. In her evidence, she stated that on 30.06.2010, she was incharge S.I. at Krishnankovil Police Station and in the early morning at around 1.30 a.m., Kandhan (P.W.1) came over to the Police Station and lodged the complaint. 12. On the basis of the complaint, P.W.16 registered FIR in Crime No.142 of 2010 under Section 302 IPC. She then forwarded the First Information Report and the complaint to the Judicial Magistrate No.1, Srivilliputhur, through Head Constable Marikrishnan, by express tapal. The witness, P.W.16, identified the First Information Report as Ex.P.14. 13. Thereafter, further investigation was taken over by P.W. 17/Ramasamy, who was the Inspector of Police at Srivilliputhur Taluk Police Station. He examined the First Information Report in Crime No.142 of 2010 registered under Section 302 IPC. The witness, P.W.16, identified the First Information Report as Ex.P.14. 13. Thereafter, further investigation was taken over by P.W. 17/Ramasamy, who was the Inspector of Police at Srivilliputhur Taluk Police Station. He examined the First Information Report in Crime No.142 of 2010 registered under Section 302 IPC. He went over to the scene of crime and in the presence of witnesses Sundar, the Village Administrative Officer and Kannan, the Village Assistant, in the morning at 2.30 a.m., in the light which was available, prepared the observation mahazar and also a rough sketch. The rough sketch was marked as Ex.P.15. 14. Thereafter, he conducted the inquest over the dead body in the presence of Panchayathars between 3.00 a.m. and 5.00 a.m. The inquest report was marked as Ex.P.16. Thereafter, he sent the body of the deceased for postmortem through Head Constable No.1647. He then recorded the statements of the witnesses Kandhan (P.W.1) and Guruvaiah (P.W.2) and Periyakaruppan (P.W.5). He also recorded the statements of P.W.3 and P.W. 4, who are both called Karuppasamy (both turned hostile) and also Kannan (P.W.9). He also recorded the statement of Muneeswari/P.W.7 (declared hostile) (wife of the accused). He also recorded the statements of Sundar, the Village Administrative Officer (not examined) and Kannan, the Village Assistant (P.W.9). He also recorded the statements of witnesses Muniandi (not examined), Murugan (P.W.11), Mahalingam and petchiammal (both not examined). 15. On 30.06.2010, in the morning at 5.00 a.m., he collected the blood stained sand (M.O.3) from the scene of crime and also the sand without blood stain (M.O.4). He took into custody the accused on 30.06.2010 in the evening at 4.00 p.m., in the presence of Sundar, the Village Administrative Officer and Kannan, the Village Assistant (P.W.9). He recorded his confession statement (Ex.P.6). The accused in his confession statement (Ex.P.6), disclosed where he had kept hidden his clothes and the 2 ½ feet wooden stick which he had used for the commission of the offence. That was also recovered in the presence of the witnesses. The blood stained wooden stick was marked as M.O.1 and his shirt, which was also blood stained was marked as M.O.5. 16. P.W.17 seized the material objects under Form – 91 and forwarded the same to the jurisdictional Magistrate Court. That was also recovered in the presence of the witnesses. The blood stained wooden stick was marked as M.O.1 and his shirt, which was also blood stained was marked as M.O.5. 16. P.W.17 seized the material objects under Form – 91 and forwarded the same to the jurisdictional Magistrate Court. He also forwarded the blood stained wooden stick (M.O.1) and blood stained shirt (M.O.5) worn by the accused for forensic examination through proper channel and under letter. He then sent the body of the deceased for postmortem and examined Dr.Ganesh Babu (P.W.15), who conducted the postmortem. 17. On 28.07.2010, he received the certificate from forensic laboratory and also examined the forensic science expert Vairamuthu (P.W. 12). On 16.08.2010, he recorded the statement of Karupaiah (P.W.8) from the Electricity Department who stated that street light was available and electricity was available at the time of the incident. On 06.10.2010, P.W.17 completed the investigation and filed final report charging the accused with commission of offence punishable under Section 302 IPC. 18. The learned Judicial Magistrate No.II, Srivilliputhur, had taken cognizance of the final report as P.R.C.No.36 of 2010 and served the relevant copies under Section 207 Cr.P.C. free of cost to the accused. 19. Thereafter, since it was an offence punishable under Section 302 IPC, which was triable exclusively by a Court of Sessions, he committed the case to the Principal District and Sessions Court, Virudhunagar District at Srivilliputhur. The same was taken on record as S.C.No.21 of 2011. 20. In conformity with the investigation conducted, quite apart from P.W.1 and P.W.2, during trial, the prosecution in order to prove the recovery had also examined the Village Assistant, Kannan (P.W.9), who was witness for the preparation of observation mahazar and the rough sketch. The prosecution also examined P.W.7, Athmanesan, the photographer who took photos of the scene of crime and of the body. The photos taken by him were produced as material objects and taken on record by the learned Sessions Judge as M.O.6 (9 photographs). 21. The prosecution also examined P.W.11, Murugan, from the Magistrate Court to speak about the forwarding of letters for forensic examination of the material objects. The scientific officer from the forensic department (P.W.12) was also examined. The certificates were marked as Ex.P.9, P.10 and P.11. 22. As pointed out earlier, the only charge which was framed against the accused was under Section 302 IPC. The scientific officer from the forensic department (P.W.12) was also examined. The certificates were marked as Ex.P.9, P.10 and P.11. 22. As pointed out earlier, the only charge which was framed against the accused was under Section 302 IPC. The accused denied the charges and claimed to be tried. The nature of evidence which was produced by the prosecution had been narrated above. The learned Sessions Judge on appreciation of the evidence produced had observed that on 29.06.2010, since the deceased Muthukaruppan did not come home for dinner, P.W.1 and P.W.2 had gone in search of the deceased and at around 11.45 p.m., they heard a loud noise and when they went in that particular direction, they saw the deceased Muthukaruppan running wearing his lungi and behind him, the accused chasing him with M.O.1 – wooden stick. They deposed they saw the accused hitting the deceased on the head causing the deceased to fall down and thereafter the accused had continued to hit the deceased causing instant death. 23. The learned Sessions Judge had further observed that P.W. 1 and P.W.2 had directly witnessed this particular incident. The learned Sessions Judge also pointed out in this connection, that a complaint Ex.P.1 had been lodged before the Krishnankovil Police Station, as a result of which, the First Information Report had been registered without any delay at around 1.30 a.m. and the the First Information Report and the complaint had been forwarded to the jurisdictional Magistrate, who also received it in the early morning at 3.30 a.m. Therefore, the learned Sessions Judge was of the opinion that the sequence of events had no interruption and that immediately after the occurrence, the complaint (Ex.P.1) had been lodged, the FIR (Ex.P.14) had been registered and also forwarded to the jurisdictional Magistrate. 24. The learned Sessions Judge also noted the nature of injuries stated by Dr.Ganesh Babu (P.W.15), who had conducted the postmortem and had issued the postmortem certificate (Ex.P.13). A persual of Ex.P.13 would show that there were six injuries; (i) Deformed face and scalp (ii) Lacerated injury left forehead ('x' 2 x 2 cm bone deep) (iii) Lacerated injury left eyebrow 5x2x2 cm (bone deep) (iv) Lacerated injury left side mabilia 5x3x1 cm (bone deep) (v) Lacerated injury right side upper lip 3x2x1 cm (vi) Lacerated injury right orbit with fracturing 5x2x2 (bone deep). 25. 25. The case of the prosecution, rather than the case advanced by the learned Additional Public Prosecution before the Trial Court was that the deceased had illicit relationship with the wife of the accused. On that fateful night, 29.06.2010, the accused came to the house at 11.30 p.m. in the night and knocked at the door. The deceased ran out wearing his lungi. This naturally intensely provoked the accused. The accused chased the deceased and with the available stick caused him an injury in the head. An argument was advanced that most of the injuries were in the front side of the forehead, on the eyebrows, on the nose and on the lips, which could probably have been caused by a fall on the ground and could not have been caused by the accused. However, the learned Sessions Judge did not take that particular explanation into consideration and proceeded to convict the accused under Section 302 IPC. 26. Heard arguments advanced by Mr.S.Mayaperumal, learned Counsel appearing for the appellant and Mr.S.Ravi, learned Additional Public Prosecutor appearing for the respondent. 27. Mr.S.Mayaperumal, learned Counsel for the appellant pointed out the extreme nature of provocation which was suffered by the appellant on finding, at 11.45 p.m. in the night, the deceased running out of the house of the accused wearing a lungi in which house his wife (the wife of the accused) was staying. It had been argued by the learned Counsel that this extreme provocation caused the accused to chase the deceased. He had a stick in his hand which was a very small about 2 ½ feet alone in length. It is the contention of the learned Counsel that while running, the deceased had fallen on the ground thereby causing self injuries on the forehead, on the eyebrows, on the nose and on the lips and therefore, the learned Counsel contended that the accused had not caused the injuries which led to death of the deceased. The learned Counsel, therefore, urged that this Court should consider this offence as culpable homicide, not amounting to murder and further, even if it is considered as culpable homicide and that it was the appellant who was culpable for the death of the deceased there was no intention to cause death, but rather only to cause hurt and certainly not death. It had also been pleaded that this Court should view the evidence accordingly. It had also been pleaded that this Court should view the evidence accordingly. 28. The learned Counsel for the appellant also placed reliance on a judgment reported in (2009) 16 SCC 361 , Felix Ambrose D'souza -vs- State of Karnataka , wherein, the Hon'ble Supreme Court had examined homicide under sudden provocation on the spur of a moment and when there was no premeditated plan or intention. It was held by the Hon'ble Supreme Court that the conviction should have been only under Section 304 part II IPC and accordingly had set aside the order of conviction under Section 302 IPC and convicted the appellant therein for offence punishable under Section 304 part II IPC to rigorous imprisonment for four years. 29. Mr.S.Ravi, learned Additional Public Prosecutor, however denied and disputed the contentions raised on behalf of the appellant. The learned Additional Public Prosecutor pointed out that there were very deep and serious injuries on the scalp of the deceased which could not have been caused by a normal fall even by a running person. He further pointed out that the injury on the left side of the head was bone deep and stated that such injuries could only have been caused by a very fierce blow by a stick or by a log and stated that the only person who had intention to commit such an offence was the accused and none other. 30. The learned Additional Public Prosecutor also pointed out that though there was provocation as is evident from the records, still the nature of reaction by the accused was disproportionate to the nature of provocation caused. He also pointed out the evidence of P.W.1 and P.W.2, who stated that they had directly witnessed the incident. He pointed out that it was only natural they were present in the scene of occurrence since the deceased had the habit of coming home to eat dinner at 9.00 p.m. and since he did not come, they had gone searching for him and on hearing a loud noise, had run to the place and saw the accused chasing the deceased and hitting him on the head as a result of which the deceased fell down. 31. 31. The learned Additional Public Prosecutor also pointed out that the prosecution had examined P.W.7, an employee of the Electricity Board who stated that there was no power cut in that particular area and there was also sufficient light in that particular place of occurrence. The learned Additional Public Prosecutor however stated that it is also the case of the prosecution that the deceased had an illicit relationship with the wife of the accused and there was also an earlier incident of similar provocation as is seen from the charge framed against the accused. He also pointed out the recovery of wooden stick with blood stain (M.O.1), recovery of blood stained shirt worn by the accused (M.O.5) and argued that these would point out that the stick was used by the accused for the offence and causing blood stains on his shirt. However, he pointed out that the blood group was not able to be identified or matched with the blood group of the deceased. 32. The learned Additional Public Prosecutor pointed out that there had been a clear sequence of incident from the time when the accused knocked at the door of his house at 11.45 p.m. in the night on 29.06.2010, to the deceased running away wearing lungi, the accused chasing him with the stick, P.W.1 and P.W.2 witnessing that in the light which was available, the accused hitting the deceased on the head, the deceased falling down dead at that place itself. He also pointed out that immediately thereafter the complaint had been lodged, First Information Report had been registered and the same had been forwarded to the learned Judicial Magistrate No.II, Srivilliputhur. 33. It was therefore contended by the learned Additional Public Prosecutor that the sequence was straight forward and the prosecution had established that the deceased died of homicide and there was no other possibility but that the homicide was caused only by the accused and none else. The nature of injuries showed that the accused had intention to cause death and it was therefore argued that though there an arguable point had been raised on behalf of the accused for the offence being brought under Section 304 part II IPC, the learned Sessions Judge could not be faulted for having convicted the accused for offence punishable under Section 302 IPC. 34. We have carefully considered the arguments advanced and perused the material records. 35. 34. We have carefully considered the arguments advanced and perused the material records. 35. The accused is married to P.W.7 (Muneeswari). It is the case of the prosecution, and this fact is not disputed, that Muneeswari (P.W. 7) unfortunately had cultivated an illicit relationship with the deceased/Muthukaruppan, who is a resident of the same village Panankulam in Virudhunagar District. As a matter of fact, three months prior to the incident, the deceased was seen coming out of the house of the accused at 9.00 p.m. and there was a wordy quarrel between them. 36. On 29.06.2010, at around 11.45 p.m. in the night, when the accused came back to his house and knocked at the door, the deceased ran out wearing only a lungi. It is only natural that any husband who sees another male person who had earlier also entered the house at night time, running out of his house inhabited by his wife, would get infuriated and extremely agitated and would loose control of his normal senses, and would naturally react in a hostile manner. The accused also reacted in that manner. He was the husband of Muneeswari (P.W.7). She was staying in the house. From that house at 11.45 p.m., the deceased ran out wearing only a lungi. This is a direct provocation caused on the accused. In the face of such provocation, it was only a natural reaction to chase the deceased and under such extreme provocation, also lash out at him with any available object. The available material object was M.O.1, a wooden stick of 2 ½ feet. 37. It is the case of the prosecution that P.W.1 and P.W.2 saw the accused chasing the deceased and hitting him on the head and the deceased falling down. We hold that this act of the accused was a direct result of extreme provocation. In the middle of the night, the deceased had been in the house of the accused along with the wife of the accused. When he ran out wearing only a lungi, it is only natural that this would invite a hostile reaction from any person and in this case, from the accused. He had chased the deceased and had hit him on the left side of the head. The deceased fell down. The only question to be answered by us is whether there was intention to cause death or not. He had chased the deceased and had hit him on the left side of the head. The deceased fell down. The only question to be answered by us is whether there was intention to cause death or not. The object with which he had caused injury, is not an object which would in normal circumstances, if hit on a person would cause death. It must also to be pointed out that the deceased was running at speed and the accused was chasing him. Naturally any blow which is hit, even without any intention would be a hard blow on the person on whom it is aimed at, in this case, on the deceased. Further, the mind of the accused must have been much agitated at having seen the deceased running out from his house when his wife alone was staying there. 38. Exception I to Section 300 IPC is as follows:- “Exception 1.-When culpable homicide is not murder.- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.” 39. Section 304 IPC reads as follows:- “Punishment for culpable homicide not amounting to murder. 304. Punishment for culpable homicide not amounting to murder.-- Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death. or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” 40. The first question to be addressed by us is whether the death of the deceased was a homicide or was caused by a fall on the ground? 41. The evidence of P.W.1 assumes importance in this aspect. P.W.1 is the father of the deceased. The first question to be addressed by us is whether the death of the deceased was a homicide or was caused by a fall on the ground? 41. The evidence of P.W.1 assumes importance in this aspect. P.W.1 is the father of the deceased. He could be termed as an interested witness but, the evidence he adduced was natural. He had stated that the deceased would come home every day at around 9.00 p.m. to have his dinner. On that day, 29.06.2010, the deceased did not come home for dinner. Therefore, he was searching out for the deceased. P.W.2 is his other son. The evidence of P.W.2 is however slightly different. He stated that he/P.W.2, his father P.W.1 and P.W.3 and P.W.4 both of whom are called Karuppasamy were talking and they heard a loud noise at around 11.45 p.m. They rushed towards the direction of the place from where the noise was heard. They saw the deceased running out only with a lungi and behind him, the accused chasing him with a wooden stick and hitting him on the head. P.W.1 stated the same fact. Therefore, even if the deceased had fallen down, the fall is the result of the hit in the head. Further the nature of the injury caused as is seen from the postmortem certificate is a deep injury exposing the bone. We hold that the deceased died a homicide death. 42. It is next to be examined whether this death was caused by the accused? 43. From the evidence of P.W.1 and P.W.2, it is clear that the only person who caused the injury on the deceased was the accused. On the basis of his confession, M.O.1 wooden stick had been recovered, which also contained blood stain. It is also seen that subsequently, on the basis of his confession, the blood stained shirt worn by him was also recovered and had been produced as M.O.5. The presence of blood marks in the stick and the shirt more particularly on the shirt worn by the accused calls for an explanation by the accused. No explanation had been given by the accused. The presence of blood marks in the stick and the shirt more particularly on the shirt worn by the accused calls for an explanation by the accused. No explanation had been given by the accused. Even though it is stated that blood stain did not match with the blood group of the deceased, it must also be stated that a blood stain on a fabric or blood stain on a wooden stick would merge with the fabric and with the wood and it would be extremely difficult to take out traces from them to find out the blood group. However, it is the burden of the accused to explain as to how his shirt became blood stained. Therefore, we hold that the homicide of the deceased was caused by the accused and the accused alone. 44. The next aspect to be examined is whether this was caused with intention to cause death and with knowledge that the blow which he had given on the head would cause death and that the deceased would certainly die owing to that particular blow? 45. In the instant case, the extreme provocation would have to be considered by us. The accused had seen the deceased running out of his house in the middle of the night at 11.45 p.m. wearing only a lungi, when he knocked the door. The only presumption which the accused would have drawn is that this was not just a casual relationship between his wife/P.W.7 and the deceased but, a carnal physical relationship. This would cause deep anger and agitation in any person. It would deprive any man of the power of self control. The provocation was not the result of any act by the accused but caused only by the deceased. 46. During the cross-examination of P.W.2, he had stated as follows:- A rough translation is that P.W.2 had admitted that his younger brother (the deceased) was having a love affair with the wife of the accused. 47. Thus, the fact that the deceased had relationship with a married lady/wife of the accused had been established by the witness for the prosecution. As a matter of fact, even in the charge it had been stated that three months prior to the incident, the accused had seen the deceased coming out of his house in the night 9.00 p.m. and there was a quarrel between the two of them. As a matter of fact, even in the charge it had been stated that three months prior to the incident, the accused had seen the deceased coming out of his house in the night 9.00 p.m. and there was a quarrel between the two of them. The provocation which was suffered by the accused was caused only by the accused. That provocation had caused him to chase the deceased and hit him on the head with the stick. Even though it can be argued that his mind was agitated, at that particular point of time the intention would to chase away the deceased and to cause harm only to the extent that the deceased does not come to his house again. Since the deceased was also running, the blow on the head had put him off balance and he had fallen down. We hold that this extreme and sudden provocation is a mitigating factor so far as the offence committed by the accused is concerned. 48. In the judgment cited by the learned Counsel for the appellant reported in (2009) 16 SCC 361 (referred supra) ( Felix Ambrose D'souza ), the case therein was the causing of the death of a younger brother. There was a litigation before the Civil Court and the family was divided into two separate groups and they had also put individual locks of a store room where substantial number of coconuts plucked from the garden were stored. There was an altercation to break open the lock and at that time, the altercation escalated into physical manhandling and in that process, with a 'Kathi/Knife' cuts were inflicted on the neck of the deceased, as a result of which, the deceased died. The blow in that particular case was on a vulnerable portion of the body, in the neck with a weapon/Kathi/Knife. The Hon'ble Supreme Court had taken into consideration the provocation which had happened and had held that it was a fit case for setting aside the conviction under Section 302 IPC and modifying the conviction under Section 304 part II IPC. 49. In the instant case, the accused had wooden stick of 2 ½ feet and was chasing the deceased who was running and in that process, he had hit him on the head. We hold the accused would certainly not have knowledge that the blow would cause the death of the deceased. 49. In the instant case, the accused had wooden stick of 2 ½ feet and was chasing the deceased who was running and in that process, he had hit him on the head. We hold the accused would certainly not have knowledge that the blow would cause the death of the deceased. The deceased also fell down. Though there was further evidence from P.W.1 and P.W.2 that the accused caused further injuries, this statement from P.W.1 and P.W.2 has not been supported by the other eye witnesses P.W.3 and P.W.4. The postmortem certificate also points out that there were blows only on the head portion. There was an injury caused to the depth of the bone which would indicate that it was caused by a blunt object like a stick and that there was no incisive cut on the body. All these point out the nature of the weapon used and the nature of the blow caused and the nature of the injuries suffered. We hold that there was no intention to cause death and there was no knowledge that the blow would cause death. The intention was to chase away the deceased and to ensure that he does not come back to the house of the accused. It was certainly not to cause death. 50. The Hon'ble Supreme Court in the judgment of Felix Ambrose D'souza (cited supra), while dealing with the plea of litigation and conversion of conviction from offence punishable under Section 302 IPC to offence punishable under Section 304 part II IPC had held as follows:- 7. The learned counsel for the appellant in the alternative has made a submission that, at any rate, the facts even held proved, could not be considered to be just and sufficient to warrant a conviction under Section 302 IPC and if at all conviction under Section 304 part II IPC alone could have been rendered possible. Though the learned counsel for the respondent - state strongly insisted that keeping in view the gravity of the offence and the brutal manner in which it has been committed with the background of animosity and ill-will there was no need for altering the nature of offence and that the finding of the High Court in this regard may not call for any interference. As noticed earlier and having regard to the materials and the evidence on record as spoken to even by the prosecution witnesses there does not appear to be any premeditated plan or intention to either put an end to the life of the deceased or cause any injury with the intention of causing his death or causing such bodily injury which within the knowledge of the accused was likely to cause his death even in the ordinary course of nature. Irrespective of the silent nature ill-feelings which existed between the parties, it appears to have surfaced with a violent turn on the fateful day due to sudden quarrel which even according to the prosecution witnesses, commenced with an altercation and attempts to break open the lock which was said to have been placed on the door of the store room by the appellant in addition to the one part by the father and the deceased. In the tussle and altercation and an attempt to break the lock by the deceased with an hammer in his hand and attempts made by the appellant to physically prevent the deceased from so doing, and physical use of force in the process, passions seem to have flared up beyond proportion all of a sudden, perhaps neither anticipated nor intended by either of them. The prosecution version itself lends credence and support to the plea of sudden provocation on the spur of moment. Therefore, we are of the view that the High Court was not right in arriving at the conclusion to convict the appellant under Section 302 IPC. In our considered view, on the proved facts the only offence that could reasonably be said to have been made out and for which the appellant could be convicted would be under Section 304 part II IPC and to this extent we partly allow the appeal and set aside the order of conviction under Section 302 IPC and instead convict him under Section 304 part II IPC. 51. The reasoning and ratio laid down therein squarely applies to the facts of this case. The accused had seen the deceased running away in the middle of the night wearing a lungi from his own house, where his wife was staying. There was already an earlier quarrel about illicit relationship between the deceased and his wife. 51. The reasoning and ratio laid down therein squarely applies to the facts of this case. The accused had seen the deceased running away in the middle of the night wearing a lungi from his own house, where his wife was staying. There was already an earlier quarrel about illicit relationship between the deceased and his wife. On the fateful day, there was a repetition of such intimacy by the deceased entering into his own house when his wife was staying alone. This is extreme provocation. We hold that the conviction of the accused for offence punishable under Section 302 IPC has to be interfered with and has to be set aside and we set aside the same and instead convict the accused for offence punishable under Section 304 part II IPC. 52. Insofar as the sentence is concerned, even in the judgment of the Hon'ble Supreme Court in the case of Felix Ambrose D'souza (cited supra), the Hon'ble Supreme Court had sentenced the appellant therein to four years rigorous imprisonment. 53. Taking all factors into consideration, particularly, the statement of the learned counsel for the appellant that P.W.7, wife of the accused has deserted the accused permanently as on date and that he is staying alone and the children have also left with P.W.7 and he is eking out livelihood as a watchman in a coconut grove, we would sentence him to punishment of four years Rigorous imprisonment. We would however retain the fine portion of the judgment, namely, Rs.10,000/- in default, one year simple imprisonment. We are informed that the fine amount had been paid. 54. We therefore direct the trial Court to take the accused into custody to serve the remaining period of sentence. We also direct that the sentence already undergone by him to be set of under Section 428 Cr.P.C. 55. In the result, the Criminal Appeal is partly allowed setting aside the conviction for offence punishable under Section 302 IPC, but convicting the accused for offence punishable under Section 304 part-II IPC and sentencing him to undergo the imprisonment for four years rigorous imprisonment with set off under Section 428 Cr.P.C. for period of imprisonment already undergone.