ORDER : K. Ramaswamy, J. 1. Special leave granted. 2. We have heard learned counsel for the State and the petitioner. We do not agree with the appellant’s counsel that the prosecution had not proved that the accused has committed the crime. We have issued notice to the State confining the case only to the nature of the offence which the appellant had committed. The Sessions Court convicted him under Section 302 Indian Penal Code and sentenced him to undergo RI for life which was confirmed on appeal by the High Court. The Sessions Court in considering the nature of the offence, found that the accused had no intention to kill the deceased. The Sessions Court, however, proceeded primarily on the nature of the injury, weapon used and the situs of the injury inflicted on the deceased, but the High Court has not properly adverted to the question. It is clear from the evidence that while the deceased, PW 2 and the accused were digging the grave the accused began to quarrel with PW 2 and the deceased was pushed by him to a distance. In that sudden quarrel without premeditation the accused appears to have lost his temper and in a heat of passion, appears to have stabbed the deceased causing a single injury on the nape of the neck of the deceased which had caused instantaneous death. Under these circumstances, the case would fall under Exception 4 to Section 300 Indian Penal Code and so is a culpable homicide not amounting to murder. Application of clause thirdly to Section 300 is not correct. Accordingly, the conviction of the appellant under Section 302 is set aside and instead he is convicted under Section 304, Part II and sentenced to undergo rigorous imprisonment for a period of five years. The appeal is allowed and the conviction and sentence are modified accordingly. 3. It is stated in fairness by the learned counsel for the State that the appellant had already undergone the sentence of six years and seven months. Therefore, he should be set at liberty forthwith.