JUDGMENT : (G. JAYACHANDRAN, R. POORNIMA, JJ.) The Appellant Ayyappan and his wife Vellammal got married about 17 years prior to the incident. After getting job as mason in Kuwait, the appellant was for nearly 6 years living abroad and came back to the South Elanthai village on 01.02.2012. He was suspicious about the fidelity of his wife used to frequently quarrel with his wife. When he was back to the Village, his wife was not in the home. Coming to know that she is in her parents house at Puthiyamputtur Village, the appellant went to Puthiyamputtur and asked her to come with him, but she refused. A week before the incident, he took the village headman Arunachalam with him to Valliammal house. Arunachalam persuaded Valliammal and Velammal. As a result, Velammal went with the appellant. However, very next day, Velammal came back to her parent’s home unbearable of the torture given by th appellant. Two days prior to the incident, the appellant again went to the house of Valliammal and requested to join him. Velammal and her mother Valliammal came to the house of the appellant and stayed in his house. On 08.02.2012, the brother of the appellant came and informed that, Velammal had gone to her parents’ home without paying Electrical bill, so he paid it. In this regard, there was exchange of words between the brother of the appellant and Velammal. After, his brother left the home, the appellant caught the hair of his wife dragged her inside the room and cut her with the billhook and almost severed her head. Valliammal the mother of the deceased, who was present at that time, tried to save her daughter. The appellant caught the neck of Valliammal and pushed her down. A street vendor by name Thangamaharajan, who on hearing the commotion in the house of the accused, came rushing to the house of the accused. He saw the appellant attacking Velammal. Since the appellant threatened if anybody come forward to give evidence, they will also face the same fate, Thangamaharajan left the place. Then, the appellant after changing his clothes left the house carrying the aruval. 2. Valliammal, the mother of the deceased, went to Kayattar Police Station and gave complaint at about 17.00 hrs. He saw the appellant attacking Velammal. Since the appellant threatened if anybody come forward to give evidence, they will also face the same fate, Thangamaharajan left the place. Then, the appellant after changing his clothes left the house carrying the aruval. 2. Valliammal, the mother of the deceased, went to Kayattar Police Station and gave complaint at about 17.00 hrs. The Inspector of Police, K.Senthilmaran registered the case in Cr.No.48 of 2012 for offence under Sections 323 , 302 and 506(ii) IPC against the appellant and took up the investigation. He went to the scene of crime. After preparing the observation mahazar and rough sketch, he sent the body of the deceased to the hospital for post mortem. He prepared inquest report and recorded the statements of the witnesses. On receipt of the information that the accused surrendered and confessed before the Village Administrative Officer by name Karuthapandian and VAO had brought the appellant to the Police Station, the Investigating Officer went to the Police Station and arrested the appellant. Based on the confession given by the appellant, the Investigating Officer in the presence of the witnesses, recovered under a mahazar, the blood stained lungi, shirt and the blood stained billhook(aruval) measuring 53 cm. 3.The Investigating Officer collected the post-mortem report from the hospital and recorded the statement of the Post-mortem Doctor. Sent the material objects for biological and serological analysis. On obtaining the reports from the Scientific Officers, completed the investigation and filed the final report. 4.The appellant was served with copies of the documents relied by the prosecution. On committal of the case to the Court of sessions, at Thoothukudi, the Trial Court framed charges under sections 323 IPC , 302 IPC and 506(ii) IPC . The appellant had admitted the guilt of the charges under section 323 IPC and 302 IPC . He denied the charge of offence under section 506 (ii) IPC . However, the trial Court proceeded with the examination of witnesses for prosecution. 5.To prove the charges, the prosecution examined 12 witnesses, marked 19 documents as exhibits and 9 material objects. 6. The appellant had admitted the guilt of the charges under section 323 IPC and 302 IPC . He denied the charge of offence under section 506 (ii) IPC . However, the trial Court proceeded with the examination of witnesses for prosecution. 5.To prove the charges, the prosecution examined 12 witnesses, marked 19 documents as exhibits and 9 material objects. 6. Facts unravelled through evidence and finding of the trial court: The trial Court relying on the evidence of the mother of the deceased(PW-1) and PW-2 an independent witness had the chance to witness the occurrence, while he was vending clothes, recorded its satisfaction of proof beyond doubt in respect of the charge for offence under section 302 IPC . The medical evidence such as post mortem report(Ex.P-9) and the testimony of (PW-7) the doctor, who conducted the autopsy taken as corroboration to the ocular evidence of PW-1 and PW-2. The confession given by the accused in the presence of PW-5. Leading to the recovery of material objects under the mahazar and the presence of human blood Group ‘ B ‘ in the billhook(M.O. 1) and in the shirt of the appellant(M.O.4) and the lungi of the appellant marked as(M.O.5) which were recovered on the confession of the appellant found it correlates with the blood group of the deceased. This fact also taken as proof for the charge of murder. 7. Insofar as the charge under section 323 IPC , since the ocular evidence of PW-1 and medical records were not adequate and satisfactorily proved beyond doubt, the appellant was acquitted from the charges under section 323 IPC . Similarly, in respect of charge under section 506(ii) IPC , in the complaint(Ex.P-1) it is stated that after committing the crime, the appellant came out of the house. There was panic in the street and public ran helter shelter. Vehicles were diverted. The appellant threatened the persons gathered in front of the house that, if anybody come forward to give evidence against him, he will sever their head. However the said allegation were not in the deposition given before the Court. Hence, the charge under Section 506 (ii) IPC also held to be not proved. 8. Vehicles were diverted. The appellant threatened the persons gathered in front of the house that, if anybody come forward to give evidence against him, he will sever their head. However the said allegation were not in the deposition given before the Court. Hence, the charge under Section 506 (ii) IPC also held to be not proved. 8. Challenge to the trial court judgment: Being aggrieved by the finding of the trial Court and the conviction under section 302 IPC , the appeal is filed on the ground that, the trial Court failed to appreciate the contradictions in the testimony of PW-1 and PW-2. It failed to take into consideration that PW-1 had deposed that when the brother of the accused came to the house and asked the deceased about the electricity charge of Rs.140/-, the deceased saying, ‘my husband will pay. Why asking the money from me’. Immediately, the appellant caught the plaited hair and dragged her inside the room and cut her neck with aruval. If that is true, the brother of the appellant ought to have been examined as one of the witness. The Investigating Officer had not given any satisfactory explanation for not examining the brother of the appellant. The trial Court failed to discuss about this contradiction and vital omission. 9.PW-1 had deposed in the cross examination that while the appellant and her daughter fighting, in the mele, the TV in the bed room fell down and broke into pieces, the clothes got shattered. The police, who where in the bundobust duty, came to her house and collected the broken TV pieces and clothes with them. They arrested the accused with aruval. This is not the case as found in the complaint(Ex.P-1) dated 08.02.2012 or in the statement Ex.P. 2 given by PW-1 to the Judicial Magistrate on 12.02.2012. 10.PW-1 in the chief examination had deposed that she went to the police station and reported about the murder. The complaint is Ex.P-1. In the cross examination, she had stated that the police team in the village, who came for the temple festival bundobust (security) on hearing the incident came to the spot and got her thumb impression in the complaint. Therefore, the contradictions about the first complaint and the place at which PW-1 gave the complaint Ex.P-1 falsifies the prosecution case. In the cross examination, she had stated that the police team in the village, who came for the temple festival bundobust (security) on hearing the incident came to the spot and got her thumb impression in the complaint. Therefore, the contradictions about the first complaint and the place at which PW-1 gave the complaint Ex.P-1 falsifies the prosecution case. 11.The learned counsel for the appellant also submitted that, neither PW-1 nor PW-2 are reliable witnesses. Their presence at the scene of occurrence is not believable. PW-1, the mother of the deceased is not the residence of Elanthaikulam Village. Likewise, PW-2 also not a resident of Elanthaikulam. The trial Court itself has found that her evidence about the injuries, she alleged to have sustained not believable. Therefore, she cannot be considered as a injured witness in the occurrence to hold her testimony on a higher pedestal. 12.The case of the prosecution is that PW-1 was present in the house when the appellant attacked the deceased. Hearing the commotion, (PW-2)the street vendor came to the house and he also saw the occurrence. Whereas in the complaint Ex.P-1, there is no mention about the presence of PW-2. Even in the statement given to the Magistrate and recorded under section 164 CrPC, PW-1 had not stated that PW-2 came to the spot on hearing the commotion. The fact that PW-2 was not a chance witness but planted by the prosecution to make believe their version could be easily seen from the absence of PW-2 name in Ex P-1 and Ex P-2. 13.The learned counsel further stated that none of the prosecution witnesses able to explain the missing of the jewels and wearing apparels of the deceased. PW-1, in the cross examination, had admitted that before the occurrence her daughter and the son-in-law went to the temple together. At the time, her daughter was wearing ear ring, nose stud, chain, anklet and bangles. Those jewels were missing on the body of the deceased. PW-12, the Inspector of Police, who investigated the case, admits that he had not recovered any jewels from the body of the deceased. He did not remember whether the deceased was wearing any jewels. He admits that no jewels were produced before the Court in this case. Those jewels were missing on the body of the deceased. PW-12, the Inspector of Police, who investigated the case, admits that he had not recovered any jewels from the body of the deceased. He did not remember whether the deceased was wearing any jewels. He admits that no jewels were produced before the Court in this case. 14.The police without properly investigating the case of murder for gain by some unknown person, had fixed the appellant who came to the Village from abroad on the request of his wife to participate in the village temple festival. He was cordial with his wife and visiting places along with her. Within few days he was about to leave abroad. 15.According to the prosecution, based on the extra judicial confession given to the VAO(PW-5), the accused was arrested and on his confession incriminating materials were recovered, which were hidden at a place exclusively know to the appellant. On the next day of the crime, ie on 09.02.2012, the appellant out of remorse came forward voluntarily to confess his guilt. The remorse continued even till he was questioned by the Sessions Judge on 25.08.2014 about the charges under Sections 323 IPC and 302 IPC framed in respect of causing hurt to PW-1 and intentionally causing the death of his wife Velammal. Only during the trial, after advise had retracted his confession. 16.The evidence of PW-1 who got injured cannot be brushed aside as interested witness or planted witness in view of certain minor contradictions or for the perfunctory investigation. A clear case of murder purely on suspicion of the wife fidelity cannot be disbelieved for the minor contradictions found in the prosecution case. 17.Heard, the learned counsels appearing on either side and perused the records. 18.From the complaint Ex.P-1 recorded by PW-12 under Section 157 CrPC, the statement recorded by the learned Judicial Magistrate under section 164 CrPC and the evidence of PW-1 recorded by the Court, we find the following contradictions and embellishments. a) The presence of PW-2 not mentioned in Ex P-1 and Ex P-2. b) In the complaint(Ex.P-1) it is stated that, PW-1, the appellant and the deceased went to the temple on 08.02.2012 and returned home. Krishnan, the brother of the appellant came and told about payment of Electricity bill, which lead to exchange of words. a) The presence of PW-2 not mentioned in Ex P-1 and Ex P-2. b) In the complaint(Ex.P-1) it is stated that, PW-1, the appellant and the deceased went to the temple on 08.02.2012 and returned home. Krishnan, the brother of the appellant came and told about payment of Electricity bill, which lead to exchange of words. After Krishnan left, the appellant picked quarrel with the deceased and attacked her with aruval. In her cross examination, PW-1 had stated that, the brother of the appellant was present when the appellant attacked his wife. In any case, the visit of Krishnan appears to be the immediate cause of the provocation, he is a crucial witness in this case. Miserable, he is not examined by the prosecution. c) The change of clothes by the accused soon after committing crime and before leaving the Scene of occurrence is found in Ex.P-2 statement given to the Judicial Magistrate. However, in (Ex.P-1)complaint nothing mentioned about the clothes. In her evidence, she says that the accused took a set of clothes with him. This improvement is obviously to corroborate the recovery of blood stained clothes from the accused after arrest and confession. d) PW-1 in her cross examination had deposed that, on 08.02.2012 the accused was arrested with aruval at the spot itself by the police on bundobust duty. Also she had deposed that her complaint was recorded at the spot and the police obtained her thumb impression in it. However, Ex.P-1 appears to have been received and recorded at the police station at about 17.00 hrs. e) In the cross examination, PW-1 had spoken about the broken TV, shattered clothes. Seizure of them by the police on the same day. However, in the observation mahazar(Ex P-3) there is no mention about broken TV or shattered clothes. In the rough sketch(Ex.P-18) also only Bureau and cot is marked and not TV. f) PW-4, Village Assistant, who is one of the signatory to the observation mahazar as a witness, in the cross examination, admits that he did not entered the room. At the time of observation, there was no power supply to the house. With the help of torch light, the observation mahazar was prepared. He signed it outside the house, in the road. He is not aware whether there was any broken TV and its pieces in the room. At the time of observation, there was no power supply to the house. With the help of torch light, the observation mahazar was prepared. He signed it outside the house, in the road. He is not aware whether there was any broken TV and its pieces in the room. 19.Nonetheless, despite the contradictions mentioned above, as pointed out by the learned Public Prosecutor, the evidence of PW-1 in respect of the commission of crime by the appellant is not impinged. Her evidence about the quarrel before the incident and the reason for the quarrel reveals that the conversation of the deceased soon before the occurrence has lead to the brutal attack by the appellant. 20.In the said circumstances, the Court is bound to test the evidence whether the commission of crime by the appellant falls within the definition of culpable homicide amounting to murder or fall under the exception (1) of Section 300 IPC which states, that a culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes death of the person who gave the provocation or causes the death of any other person by mistake or accident. 21.In order to prove that, there was grave and sudden provocation under Section 300 Exception -1, the following ingredients is necessary: a) That the provocation was sudden. b) That the provocation was grave. c) There was loss of self control. d) The interval between the provocation and the homicide should be brief and live. 22.This Court, on appreciating the evidence on record, finds that the appellant came to India to attend the temple festival. He along with his wife had gone to the temple together and returned back. Only after the visit of Krishnan, the brother of the appellant and the conversation of the deceased, the provocation triggered. The exact words used by the deceased during the exchange of words with Krishnan not truly disclosed by PW-1. Her version and the version of the appellant in his confession differs. It is the case of the prosecution that the appellant had voluntarily surrendered and confessed his guilt. However, PW-1 had embellished the facts to an extend to hide the conduct of her daughter and her provocative conversation. Hence, she is not wholly reliable witness. Her version and the version of the appellant in his confession differs. It is the case of the prosecution that the appellant had voluntarily surrendered and confessed his guilt. However, PW-1 had embellished the facts to an extend to hide the conduct of her daughter and her provocative conversation. Hence, she is not wholly reliable witness. 23.From the evidence, it is apparently clear that after the provocative conversation, there was no intervening period for the passion to cool and for the accused to regain dominance and control over his mind. 24.While considering the Exception(1) to Section 300 IPC , it is said that, the gravity of provocation turns upon the whole of the victim’s abusive behaviour towards the accused. Gravity does not hinge upon a single or last act of provocation deemed sufficient by itself to trigger the punitive action. Last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained provocation test would be satisfied when the accused’s retaliation was immediately preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation. 25.On applying the above test for grave provocation to the facts of the case in hand, we are convinced that, the appellant who came from abroad to join his wife and celebrate the temple festival was deprived of his wish, when his wife refused to join him. Later, he was able to bring her to his home but only for a day. She left him the next day. Again he brought her to the home two days earlier to the incident and she was with him. On 08.02.2012 both went to temple during the forenoon and returned together along with PW-1. Only after the visit of Krishnan and the words uttered by the deceased, he had brutally attacked his wife and killed her. This falls under the first exception to Section 300 IPC , hence punishable only under Section 304 (ii) IPC and not under section 302 IPC . Only after the visit of Krishnan and the words uttered by the deceased, he had brutally attacked his wife and killed her. This falls under the first exception to Section 300 IPC , hence punishable only under Section 304 (ii) IPC and not under section 302 IPC . 26.As a consequence of the above finding, the sentence imposed by the trial Court is modified as below: Under Section 302 IPC : Life imprisonment with fine of Rs.2000/-, in default, to undergo one year Rigorous Imprisonment, is modified to sentence under Section 304 (ii) IPC : 10 years Rigorous Imprisonment and fine of Rs.2000/-, in default, one year Rigorous Imprisonment. The period of sentence already undergone to be set off. 27.In the result, the Criminal Appeal stands partly allowed as modified above.