Judgment K.M. NATARAJAN, J. (1) THE accused Ramaiyan, aged 78 years, in S. C. No. 106 of 1983 on the file of the Sessions Judge, Kanaiyakumari Division at Nagercoil, has preferred this appeal challenging the legality and correctness of his conviction under section 302 Indian Penal Code and the sentence for imprisonment for life. The accused was tried for the charge of murder under section 302 Indian Penal Code on the allegation that on 22-2-1983 at Kurunthancode in front of their house caused the death of his eldest son Chellappan by stabbing him with knife. To substantiate the said charge, the prosecution examined P. Ws. 1 to. 7, filed Exs. P-i to P-29 and marked M. Os. 1 to 6. (2) THE facts of the case disclosed from the oral and documentary evidence, can be briefly stated as follows: The accused has got three sons, namely I the deceased Chellappan, Rajamani, P. W. 3 and Ganesan P. W. 1. All of them were married. The house and other properties were also divided into three shares and each son was given his respective share. They have get their land about 150 away from their house, in which there were six palmyrah trees and each son was entitled to two trees as per the partition. The accused who was staying with the second son P. W. 3, was enjoying the two palmyrah trees allotted to the deceased Chellappan by getting sweet toddy and also giving it to the toddy shop, in respect of which some enmity arose between the father and son. (3) ON the day of the occurrence, namely, on 22-2-1983, at about 7. 30 p. m. the accused was making some baskets with the palmyrah leaves by using a knife. The deceased was near him at that time. There were exchange of words between the deceased and the accused in respect of the accused enjoying the palmyrah trees allotted to the deceased. The deceased after exchange of words demanded his father, the accused, to give him betels. But the accused refused. When he refused, the deceased saying that you are refusing to give betel, attempted to beat him after getting down from the pial. At that time, the accused stabbed him. The deceased warded off the cut with the left hand and the stab fell on his left abdomen and the intestines came out. But the accused refused. When he refused, the deceased saying that you are refusing to give betel, attempted to beat him after getting down from the pial. At that time, the accused stabbed him. The deceased warded off the cut with the left hand and the stab fell on his left abdomen and the intestines came out. (4) THEREAFTER the two sons of the accused, namely, P. Ws. 1 and 3, and others took the deceased to the Nagercoil Government Hospital. P. W. 11, Medical Officer attached to the laid hospital, examined him at about 9. 40 p. m. on the same day for the injuries said to have been caused with knife by the father at about 7 p. m. at his residence. He found the following two injuries. (1) Incised wound 7 x 3 cm. opening into the peritoneal cavity through which intestine is coming out. Site in the left, iliac fossa, transversed in direction, (2) Incised wound transverse on the front of left forearm 5 x 1 x 2 cm. Ex. P. 18 is the duplicate copy of the Accident Register wherein he made necessary entries. On receipt of intimation E. X. P-14 from the Medical Officer, P. W. 9 Head Constable attached to the Kottar Police Station went to the hospital. Since the injured Chellappan was not in a position to talk, his brother P. W. 1 gave the complaint Ex. P. 1, on return to the Police Station, he registered a case in Crime No. 136 of 1983 under section 324 Indian Penal Code. Ex. P-15 is the printed first information report. Thereafter he transferred the same to the concerned Eranical Police Station. On receipt of the same, P. W 16 registered a case of his Police Station and took up investigation. When he went to the hospital at about 11 a. m. (23-2-1983) he learned that at about 10-45 a. m. the injured Chellappan died. Ex. P. 22 is the death intimation received by PW. 14. The same was forwarded to Eraniel Police Station. The section of the offence was altered into one of sec. 302 Indian Penal Code. P. W. 17, Inspector of Police, Eraniel, took up investigation and inspected the scene place at about 3 p. m. He prepared the observation mahazar Ex. P. 2 and drew the rough sketch Ex P. 26 He seized bloodstained earth and sample earth (M 05. The section of the offence was altered into one of sec. 302 Indian Penal Code. P. W. 17, Inspector of Police, Eraniel, took up investigation and inspected the scene place at about 3 p. m. He prepared the observation mahazar Ex. P. 2 and drew the rough sketch Ex P. 26 He seized bloodstained earth and sample earth (M 05. 5 and 6) under Ex. P. 3 and also the chimney M. O. 4 which was found hanging in the scene house. Thereafter he examined some witnesses. On 24. 2-83 between 6. 45 a. m. and 9 a. m. he held inquest during which he examined P. Ws. 1, 3 and others. He seized the bloodstained clothes M. Os. 1 and 2 from P. Ws. 1 and 3 under Ex. P. 21, Ex. P-28 is the inquest report prepared by him. 1. Incised wound on the left side of abdomen 1 above left iliac crest over the left iliac fossa, transverse direction 2% above the anterior to the anterior superior iliac spine running posteriorly size 7 cm through which intestine protrude with multiple punctures 2t of lower gangrenous. Totally 6 of intestines seen outside the body. Since of wound 7 cm x 3 cm with intestines. 2. Transverse incision in the middle of left forearm 5 cm with sutures. According to the doctor, death would have occurred 23 to 25 hours prior to post-mortem examination. He opined that the deceased would appear to have died of shock and haemorrhage and gangrene due to injury to vital organs. External injury No. 1 with the corresponding internal injuries could have been caused by a weapon like M. O. 3. External injury No. 2 could have been caused while warding. External injury No. 1 with the corresponding internal injuries are sufficient to cause death in the ordinate course of nature. (5) P. W. 17 arrested the accused on 27-1-83 at 8. 30 p. m. The accused volunteered to give a confessional statement and the same was reduced into writing. The admissible portion of the statement is Ex. P. 6. In pursuance of Ex. P-6 he took P. W. 17 and party to Kurunthancode and from the west of the scene place he took out mud and from there he took out M 0. 3 knife and the same was seized under cover of mahazar Ex. P. 7. The admissible portion of the statement is Ex. P. 6. In pursuance of Ex. P-6 he took P. W. 17 and party to Kurunthancode and from the west of the scene place he took out mud and from there he took out M 0. 3 knife and the same was seized under cover of mahazar Ex. P. 7. Thereafter the accused was sent for remand. P. W. 17 sent a requisition to the court for sending the bloodstained material objects to the Chemical Examiner. (6) P. W. 12, Judicial Second Class Magistrate, Nagercoil on receipt of a requisition from the Medical officer, went to the Government Hospital at about 1 a. m. on 23-2-1983 and he recorded the dying declaration of the injured Chellappan in the presence of the Medical Officer P. W. 11. Ex. P-21 is the dying declaration recorded by him. Ex. P-20 is the certificate given by the Medical Officer P. W. 11 that the patient was conscious and was in a position to give statement. (7) P. W. 10, Judicial Second Class Magistrate, Nagercoil on receipt of the proceedings from the Chief Judicial Magistrate on 1-3-1983 to record the confessional statement of the accused, observed all the necessary and constitutional formalities and gave necessary warnings and time for reflection to the accused. After being satisfied that the accused was willing to give a confessional statement, be recorded the statement from him on 17-3-1985 at 3-45 p. m. The confessional statement and connected proceedings is marked as Ex. P. 16 and he sent the same to the Judicial Second Class Magistrates Court, Eraniel, with a covering letter Ex. P. 17. (8) P. W. 8 is the Head Clerk of the Judicial Second Class Magistrates Court, Eraniel. He deposed about his sending the material objects to the Chemical Examiner under the direction of the Magistrate. Exs. P-11 and P-12 are the reports of the Chemical Examiner and the Serologist respectively. After completing the investigation P. W. 17 laid the charge sheet against the accused under section 302 Indian Penal Code on 27-4-1983. (9) WHEN the accused was examined with reference to the incriminating process of evidence, he totally denied the prosecution evidence and stated that the witnesses are deposing falsely. He denied having voluntarily made the judicial confession. He also denied the confession recorded under- section 27 Evidence Act and having produced the knife. (9) WHEN the accused was examined with reference to the incriminating process of evidence, he totally denied the prosecution evidence and stated that the witnesses are deposing falsely. He denied having voluntarily made the judicial confession. He also denied the confession recorded under- section 27 Evidence Act and having produced the knife. No witness was examined on behalf of the accused. The learned Sessions Judge for the reasons stated in his judgment convicted the accused under section 302 Indian Penal Code and sentenced him as stated in the opening para of the judgment. Hence the appeal. Since the accused was not in a position to engage a counsel of his choice, the Madras High Court Legal Aid and Advisory Board engaged Mr. P. Venkatasubramanian, Advocate to defend the accused. (10) LEARNED counsel for the appellant, Mr. P. Venkatasubramanian, submitted that even accepting the entire case of the prosecution, in the circumstance of the case, the offence would not fall under section 302 I. P. C. but only under section 304, Part II, Indian Penal Code. According to the learned counsel, from the oral and documentary evidence adduced on the side of the prosecution, it is seen that there was a wordy quarrel between the deceased and the accused, that it was a sudden quarrel, that during the course of the same when the deceased attempted to beat him, the accused, who was aged 78 years and who was having a knife in his hand already in connection with the profession, dealt one blow and as a result of the same the deceased succumbed to the Injury one day later at the hospital and that as such at no stretch of imagination, it can be stated that the accused intended to attack and cause the particular injury which proved to be fatal. In support of the above contentions, the learned counsel drew us to various portions of the evidence adduced in the case. It is seen from Ex. P. 1 report given by P. W. 1 that at the time of the occurrence the accused and the deceased were taking in the pial of the house and during the course of the conversation there was a wordy quarrel in respect of enjoying the palmyrah trees. Even after the same, the deceased demanded the accused to give him betel. When the accused refused, the deceased attempted to beat his father, the accused. Even after the same, the deceased demanded the accused to give him betel. When the accused refused, the deceased attempted to beat his father, the accused. The accused was provoked and then stabbed the deceased once. It is also specifically stated in Ex. P. 1 that the occurrence took place all of a sudden. Even in the dying declaration Ex. P-21 the deceased has stated that in the house at the time of the occurrence there was exchange of words between him and his father and at that time his father stabbed him on the left abdomen and left elbow. From the judicial confession Ex. P. 16, which is relied on by the learned Sessions Judge, it is seen that the accused has categorically stated that he returned to the house at 11 p. m., that the deceased quarreled with him and also threatened to stab him with knife He took out a Kambu and beat the deceased on the left leg. The deceased also cut him with knife and threw the same. Thereupon he picked up the knife and cut him once. Though he has given a varying version in respect of the particulars of the quarrel, yet his confession clearly shows that the occurrence took place all of a sudden, that there was a wordy quarrel, that the deceased began to attack him, that the accused was provoked and that only in retaliation he gave one blow with the weapon which the deceased threw, P. Ws. 1 and 2 in their evidence has categorically stated that there was a wordy quarrel between the deceased and the accused, that thereafter the deceased demanded the accused to give him betels, that when the accused refused to give him betels, the deceased attempted to beat his father the accused and at that time the accused stabbed him by saying that be was coming to beat him. Their evidence fully supports the contention of the learned counsel for the appellant that there was a wordy quarrel between the accused and the deceased and since the deceased attempted to beat his father the accused, he gave one blow. Their evidence fully supports the contention of the learned counsel for the appellant that there was a wordy quarrel between the accused and the deceased and since the deceased attempted to beat his father the accused, he gave one blow. In the circumstances of the case, we are of the view that it cannot be said that the offence committed by the accused would fall under section 302 Indian Penal Code, but would fall only under section 304, Part II, Indian Penal Code, as there was a sudden quarrel and as a result of the same, the accused who was aged 78 years, was provoked and gave one blow to his son and unfortunately he died later in the hospital. It cannot be said that he intended to cause that particular injury which proved to be fatal. Hence the offence would fall under section 304, Part II, Indian Penal Code. As regards the actual occurrence, the prosecution has adduced acceptable evidence through P. Ws. 1 and 2, though P. Ws. 3 to S were treated as hostile. The evidence of P. Ws. 1 and 2 is corroborated by the earlier report Ex. P. 1, the Judicial dying declaration Ex. P-21, the Judicial confession given by the accused Ex. P-16 and the medical testimony of the doctors who examined him and conducted post-mortem examination. For all these reasons, the conviction of the appellant under section 302 Indian Penal Code and the sentence are set aside and instead, he is convicted under section 304, Part II, Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. With the above modification the appeal is dismissed.