Incidents occurring in a sudden quarrel in the heat of passion may be classified under Section 304, Part 1, I.P.C. instead of Section 302, I.P.C., based on the absence of premeditation and the suddenness of the act.

BALAKRISHNAN, J.

The sole accused in Sessions Case No. 91 of 1991 on the file of Sessions Court, Palakkad is the appellant. He was tried by the Court of Sessions for having caused the death of his brother Unniyekkan. The finding of the Sessions Judge is challenged in this appeal.

2. Appellant-Kunhunni alias Chami and his deceased brother Unniyekkan are residing in a nearby compounds. Their mother Kunhi had availed a loan from the Government for construction of a house. On the date of the incident, the deceased Unniyekkan heard a sound from the appellant's house and he knew that the appellant had been beating his wife. Deceased went to the house of the appellant probably to pacify the situation. According to prosecution, deceased had given two or three blows to the appellant with a stick. The deceased came to his residence and was sitting on the compound wall. According to the prosecution, the appellant came to that place and took out a spade and gave a fatal blow on the back of the head of the deceased. Deceased fell on the ground. P.W. 2, wife of deceased made a cry and the people in the locality came there and somebody informed P.W. 8 doctor. He came and examined the injured and found him to be dead.

3. P.W. 1 who is residing about 100 metres away from the place of incident came to the scene on hearing the hue and cry and saw the deceased lying injured on the ground. After about half an hour he went to Mannarkkad Police Station and gave Ext. P. 1 F.I. statement. P.W. 12, the Sub-Inspector of Police immediately visited the scene and arrested the accused at about 2.45 a.m. on the next day and he was sent for medical examination as the appellant had injuries on his body.

4. P.W. 13, took over the investigation and on 1-5-91 held inquest over the dead body. He also prepared scene Mahazar and recovered certain incriminating articles.

5. On the side of prosecution, 13 witnesses were examined and Exts. P1 to P10 were marked. The learned Sessions Judge relied on the evidence of P.Ws. 2 and 3, and found the appellant guilty of offence under Section 302, I.P.C.

6. The counsel for the appellant contended before us that the evidence of P.Ws. 2 and 3 cannot be believed and the investigation of the case was done in a manner which is prejudicial to the appellant. It is submitted that the investigating officer did not take note of several relevant materials which would throw light to the actual stage of things. The learned Public Prosecutor supported the conviction and sentence rendered by the Sessions Court.

7. P.W. 2 is none other than the wife of deceased Unniyekkan. She is not an eye-witness and she does not speak about the actual infliction of blow by the appellant to the deceased. But she gives the details of the entire circumstances leading to the incident. According to her, deceased Unniyekkan went to the appellant's house on knowing that appellant was beating his wife. According to P.W. 2 deceased Unniyekkan was having a stick with him and she deposed that her husband has gone to beat the appellant. After some time deceased Unniyekkan came back and was sitting on the boundary wall of the compound. Deceassed Unniyekkan asked P.W. 2 to bring match stick, beedi, a shirt and dhothi from inside the house and P.W. 2 went inside to take these articles. Then she heard a sound of something being broken. When she came out she saw her husband lying injured. She understood that the appellant must have beaten her husband on his back with a spade. P.W. 2 appealed to the appellant not to beat but she was also threatened. Thereafter the parents of the deceased and others came to the place of occurrence.

8. P.W. 3 is another witness who speaks of the circumstances under which the incident happened. She is also not a direct eye-witness. When P.W. 3 came to the place of occurrence she saw her son lying injured. According to her, appellant was holding a spade. P.W. 3 and her husband got the spade from the hands of the accused. P.W. 3 also