In applicability of sustained provocation.

THANGAMANI, J.

R.T. No. 4 of 1993 is a reference made by learned Sessions Judge of Dharmapuri District Krishnagiri is S.C. No. 60 of 1992 on his file under section 366 of the Code of Criminal Procedure seeking confirmation of the death sentence passed on A-1 Dhandayutham, while Criminal Appeal No. 611 of 1993 has been preferred by the said A-1 Dhandayutham Challenging his conviction and sentence.

2. A-1 Dhandayutham and A-2 Mani stood charged in the trial Court as indicated below on the allegations that on 27-9-1988 at 9.00 a.m. in the field of Velavallikadu, on account of prior enmity, at the instigation of A-2 Mani, A-1 Dhandayutham attempted to commit the murder of D.W. 2 Raji alias Raji Gounder and his wife P.W. 1 Nandhavanam, that at the same time and place and in the course of the same transaction he caused grievous hurt to P.W. 3 Pandurangan and that he trespassed into the house of P.Ws. 1 and 2 and committed the murder of Lakshmi, the first wife of P.W. 2 Raji and Perumal, the one year old child of P.Ws. 1 and 2.

3. The prosecution examined 19 witnesses, filed 33 documents and marked 32 material objects. They disclose these facts :- P.W. 2 Raji alias Raji Gounder is residing in his field shed in Velavallikadu of Vazhipatti village with his first wife deceased Lakshmi and second wife P.W. 1 Nandhavanam. Deceased Perumal is the one year old child of P.W. 2 Raji through his second wife. The houses of the accused are situate on the rear side of the house of P.Ws. 1 and 2. There was longstanding enmity between A-1 Dhandayutham and P.W. 2 Raji on account of a ridge dispute. Besides, A-1 Dhandayutham was nurturing a grievance that P.W. 2 Raji was having illicit intimacy with his wife P.W. 8 Santhi. A-1 Dhandayutham often used to beat and torture his wife. Once he had snatched away the Mangalyam of P.W. 8 Santhi. The latter complained to P.W. 2 Raji about the conduct of A-1 Dhandayutham. Two years prior to the occurrence A-1 Dhandayutham drove away his wife to her parent's house. While P.W. 8 Santhi chose to reside with her grand mother and eke out her livelihood by making Beedies, her three children were living with A-1 Dhandayutham.

4. On 26-9-1988 Monday A-1 Dhandayutham took his three children to the Employer of P.W. 8 Santhi, enquired about her, entrusted the children with him and went away. On the next day Santhi took custody of the children.

5. On 27-9-1988 Tuesday at about 7 a.m. A-1 Dhandayutham and A-2 Mani were conversing in their backyard. P.W. 1 Nandhavanam was cutting grass near the well in her field there. A-2 Mani instigated A-1 Dhandayutham to do away with his wife. At about 9 a.m. P.W. 2 Raji came there and

helped his wife in lifting the grass bundle to her head. When P.W. 1 Nandhavanam proceeded towards her house, P.W. 2 Raji was sitting on the stone near the well. At that time A-1 Dhandayutham came there from behind and cut on the right ear side of P.W. 2 Raji with M.O. 1 Aruval. P.W. 1 turned round and saw her husband running for his life towards a pit inside the well. A-1 Dhandayutham chased him stating that he was going to annihilate the entire family of P.W. 2 Raji. When A-1 Dhandayutham continued to cut P.W. 2 Raji, the latter tried to ward off the blows. Two cuts fell on his left hand. P.W. 2 Raji scaled over the well wall and ran towards the cotton field. A-1 Dhandayutham chased him further and cut on his left head and right shoulder. On hearing the noise, P.W. 3 Pandurangan who had come as guest to the house of one Murugan, came there and tried to prevent A-1 from cutting P.W. 2 Raji. Thereupon A-1 Dhandayutham cut on the right side of the neck of P.W. 3 Pandurangan asking who was he to question his act P.W. 1 Nandhavanam witnessed his incident from at a distance of 10 feet. P.W. 4 Kesavan who came there on hearing the noise also saw the occurrence. A-1 Dhandayutham cut P.W. 2 Raji on his hands and neck shouting (vernacular matter omitted) P.W. 2 Raji fell down then he got up, ran for som