A.S.Venkatachalamoorthy, J.: The appellant/accused has preferred the above appeal being aggrieved by the judgment of the learned Sessions Judge, Dindigul in Sessions Case No.4 of 1993, holding him guilty under Sec.302, I.P.C. for causing the death of one Krishnan at about 1.30 p.m. on 17.5.1992 at the village called Punnapatti and sentencing him to life imprisonment. 2. According to the prosecution, the deceased Krishnan, his wife Backiam P.W.1 and one Azhagan P.W.4 were employed under a land owner in the village called Punnapatti. The said land is situated, adjoining the river known as Thirumanimutham. In view of that location, the said land owner by name Balasubramani was particular that the sand is not removed in the said river. On the date of occurrence, the deceased Krishnan and his wife P.W.1 were doing some farm work in the land of the said Balasubramani. At about 1.30 p.m., a lorry came with some workers for the purpose of taking sand from the river, just close to the land where they were working. As directed by the land owner, the deceased Krishnan told them not to remove the sand and prevented them. The cleaner of the lorry (the accused) questioned the authority of the deceased in asking them not to remove the sand and in the meantime, the other workers, who came in the lorry started removing the sand. The deceased questioned the accused as to why he was shouting and talking in that manner. The accused then took M.O.1 stone lying on the floor and threw it on the chest of the deceased and ran away. The workers, who came in the lorry also left. The deceased, who sustained the injury because of the stone throw, fell down. P.W.1, the wife of the deceased and P.W.4, a co-worker of the deceased went near and found the deceased dead. Thereafter, both of them proceeded to the house of the land owner Balasubramani, and after informing him, went to Natham police station, where P.W.1 gave the complaint Ex.P-1. In the said complaint, P.W.4 has also signed. The complaint given by P.W.1 was received by the Sub Inspector of Police P.W.9, who registered Cr.No.176 of 1992 and prepared Express F.I.R. Ex.P-6. Thereafter, the Sub Inspector despatched the same to the Court of Judicial Magistrate and also informed his superiors. In the said complaint, P.W.4 has also signed. The complaint given by P.W.1 was received by the Sub Inspector of Police P.W.9, who registered Cr.No.176 of 1992 and prepared Express F.I.R. Ex.P-6. Thereafter, the Sub Inspector despatched the same to the Court of Judicial Magistrate and also informed his superiors. P.W.10, the Inspector of Police, who received the information by wireless went to the police station and after receiving a copy of the F.I.R. proceeded to the scene of occurrence and reached there at about 4.30 p.m. The Inspector prepared Ex.P-4 observation mahazar and Ex.P-7 sketch in the presence of P.W.7 and another. M.Os.1 and 2 stones that were found at the scene of occurrence were seized under Ex.P-5. He conducted inquest between 5.30 and 9.30 p.m., in the presence of panchayatdars, viz., Raman Chettiar, Backiam P.W.1, Ramasamy, Rathinam, Ponnan and others, and Ex.P-8 is the inquest report. During inquest, he examined P.W.1, 2, 4 and 7, Balasubramanian, Mayazhagan and others. Thereafter, the body was sent through a constable to the Government Hospital along with a requisition Ex.P-2 for the purpose of conducting post mortem. The Doctor P.W.6 at the Government Hospital, Dindigul, on receipt of the requisition conducted post mortem on the body of the deceased on 18.5.1992 at about 12.55 p.m. Ex.P-3 in the post mortem certificate. In the said certificate, the Doctor has noted the following: "(1) Very superficial abrasion over the front of left side of chest 2" x 1/4" in size 1 1/2" below the left nipple. On dissection contusion of subcutaneous tissues 2" x 1/4" over the region of left 6th rib and fracture of left 6th rib in the anterior aspect was found. Internal examination: Opening of chest: Fracture of left 6th rib in the anterior aspect present contusion of lower part of upper lobe of left lung 2" diameter found 100 ccs of liquid and clotted blood present in the left pleural cavity contusion of 1/2" diameter over the upper part of left dome of diaphragm found. Contusion of 1/2" diameter over the pericardium in the apex and 150 cs of liquid and clotted blood in the pericardial cavity contusion of 1" diameter over the apex of the heart present. At the centre of contusion of heart a perforation 1/4" diameter entering into the left ventricle present. Chambers empty. Weight of heart 200 gms. left lung 300 gms. Right lung 350 gms. At the centre of contusion of heart a perforation 1/4" diameter entering into the left ventricle present. Chambers empty. Weight of heart 200 gms. left lung 300 gms. Right lung 350 gms. Hyoid bone intact. No foreign body in larynx. Trachea. Abdomen: Stomach 250 gms. contains liquid food partly digested. No specific smell. Liver 1100 gms. pale. Spleen 75 gms. pale. Kidneys 100 gms. each pale. Small intestine empty. Large intestine contains faces 50 ccs of urine in the urinary bladder. No fracture pelvis." Skull: No fracture skull bone, membranes intact. Brain weight 1100 gms. pale. In the said certificate, the Doctor had opined that the deceased would appear to have died of shock and haemorrhage due to injury to heart and chest and that death would have occurred about 22 to 24 hours prior to autopsy. It is also stated therein that external injury could have been caused by a stone like M.O.1 and that the same is necessarily fatal. P.W.10, the Inspector of Police on 17.5.1992 at about 10 p.m. near the bus stand in Natham Koilpatti arrested the accused and was produced before Court on the next day. On 18.5.1992, he examined P.W.5 Palayapan. The further investigation was continued by P.W.11 from 1.6.1992. After completing the investigation, the Inspector of Police filed his report on 15.9.1992. 3. When questioned under Sec.313, Crl.P.C., the accused denied having committed any offence. According to the accused, he was not employed as cleaner in the said lorry as claimed and further that he was not at all present in the scene of occurrence at the time alleged by the prosecution. 4. P.W.6 is the Doctor, who conducted autopsy on the body of the deceased on 18.5.1992 at about 12.55 p.m. and Ex.P-3 is the post mortem certificate issued by him. According to the Doctor, on internal examination, he found fracture on left 6th rib in the anterior aspect. He also noted contusion of 1" diameter over the apex of the heart and at the centre of contusion of heart, a perforation 1/4" diameter entering into the left ventricle. The Doctor had opined that the deceased would have died of shock and haemorrhage due to injury to the heart and chest. The Doctor has also deposed that the external injury could have been caused by a hit with a stone like M.O.1 and that the injury is necessarily fatal. The Doctor had opined that the deceased would have died of shock and haemorrhage due to injury to the heart and chest. The Doctor has also deposed that the external injury could have been caused by a hit with a stone like M.O.1 and that the injury is necessarily fatal. Of course, the doctor has stated in the cross-examination that if a person runs and falls in a pit with a depth of 9 feet on a rough stone, such an injury could be sustained. We may straight away point out that there are no materials before Court which would substantiate such a case of the accused. We have no hesitation to hold that the deceased died only of homicidal violence. 5. According to the prosecution, the occurrence was witnessed by P.W.1 the wife of the deceased as well as P.W.4 a co-worker. Both the witnesses have categorically stated that on the fateful day that was on 17.5.1992 when the deceased P.Ws.1 and 4 were engaged in some agricultural work in the land belonging to Balasubramani a lorry came with some workmen including the accused, who was the cleaner of the lorry and when they attempted to remove sand from the river Thirumanimutharu, the deceased, in obedience to the instructions given by his master Balasubramani asked those people not to remove sand from the said river, as the same would cause damage to the land. Further these witnesses have spoken to the effect that the accused replied roughly and questioned the authority of the deceased to object and whereupon, the deceased questioned the accused as to why he was behaving in such a manner. At that time, the accused took M.O.1 stone and aiming at the deceased, threw the same, which fell on the chest and the deceased, who received the stone-hit fell down and died soon thereafter. According to the prosecution, the accused and the others, who came in the lorry left the scene immediately. P.Ws.1 and 4 thereafter proceeded to see their master and after informing him, went to the police station and P.W.1 gave the complaint Ex.P-1 to the Sub Inspector of Police. 6. We perused the testimonies of these two witnesses, viz., P.Ws.1 and 4 straight away we may say that they infuse confidence in the minds of this Court. P.Ws.1 and 4 thereafter proceeded to see their master and after informing him, went to the police station and P.W.1 gave the complaint Ex.P-1 to the Sub Inspector of Police. 6. We perused the testimonies of these two witnesses, viz., P.Ws.1 and 4 straight away we may say that they infuse confidence in the minds of this Court. As referred supra, the occurrence was at 13.00 hours on 17.5.1992 and that complaint to the police was lodged at 15.00 hours on the same day, even though the police station was at a distance of 5 kms away from the scene of occurrence. Thus, there was an immediate complaint lodged by the wife of the deceased and in the said complaint, all the details have been given. In the complaint, the presence of P.W.4 at the time of the occurrence has also been mentioned. We also find that this complaint was received by the Magistrate on the same day at 18.15 hours. Thus, we find that the complaint was given immediately and the same contains all the details. Secondly, as far as these witnesses, viz., P.Ws.1 and 4 are concerned, their presence at the scene of occurrence is quite acceptable. When that being so, if really the deceased was attacked by somebody else other than the accused, certainly they would not have left the real assailant and implicated the accused. In fact, barring the brief quarrel between the deceased and the accused on that day there was no previous ill-feeling or enmity between them. 7. Learned counsel appearing for the appellant, of course, would endeavour to convince this Court to reject the testimonies of P.Ws.1 and 2. As far as P.W.1 is concerned, it is submitted that her conduct in proceeding to the police station, leaving the deceased alone at the scene of occurrence is quite improbable. Secondly, it is contended that the deceased sustained the injury when ran and fell down. Finally, it is suggested that P.W.1 was not aware as to who all came in the lorry and only by sheer guess, she had laid the complaint. We do not find any substance in any of these submissions, P.W.1 immediately after the deceased falling down, went near and after lifting him, realised that the deceased had already died and only thereafter, she left the deceased there and went to the police station. We do not find any substance in any of these submissions, P.W.1 immediately after the deceased falling down, went near and after lifting him, realised that the deceased had already died and only thereafter, she left the deceased there and went to the police station. It is not as if that when she left the scene of occurrence, the deceased was alive and that she failed to give some first aid or take steps to take him to the hospital. As far as the second submission that the deceased ran and fell down and only in that process, he sustained the injuries, the same cannot be accepted because there was no reason for the deceased to run. No materials have been placed and not even a suggestion has been made to clarify that factual aspect. Thirdly, the contention that P.W.1 gave complaint only out of guesswork cannot be accepted since it has not been substantiated. 8. As far as P.W.4 is concerned, it is submitted that in the cross-examination, he has admitted that he came to the know that the deceased sustained injuries only because of the stone throw by the accused when informed by P.W.1, the wife of the deceased. Even assuming for a moment that P.W.4 did not actually see, the fact remains that P.W.4 was very much present at the scene of occurrence and in fact the presence of P.W.4 also finds a place in the F.I.R. The only suggestion put to this witness is that he was not aware of anything about the occurrence and that he has deposed only falsely. Even assuming for a moment, that P.W.4 was not an actual eye-witness to the occurrence, inasmuch as we are inclined to accept the testimony of P.W.1, we come to the conclusion that it was the accused, who caused the death of the deceased. 9. Learned counsel for the appellant then contended that even assuming that it was the accused, who was responsible for causing the death of the deceased, even according to the prosecution, the accused took the stone that was there on the floor and threw it on the deceased and as to what was the distance between the accused and the deceased is not mentioned by P.W.1 so also by P.W.4. It cannot be said that the accused intended to cause the death of the deceased and all that can be safely said is that the accused desired to attack the deceased with the stone. 10. We find considerable force in the submissions made by the learned counsel. The case of the prosecution is that the accused threw a stone, aiming at the deceased, which fell on the chest of the deceased. As to what was the distance between the accused and the deceased, the prosecution has not let in any evidence. A suggestion was put to P.W.1 in the cross-examination that the distance was 60 feet, but the same has been denied. Hence, there is no evidence as to what was the distance between the deceased and the accused, when the accused threw the stone. Secondly, two stones have been recovered, viz., M.Os.1 and 2. We do not understand as to why they seized M.O.2, if really the accused attacked the deceased with M.O.1. That apart the mahazar witness P.W.7 has, in his cross-examination, categorically stated that the police seized two stones from the scene of occurrence, but none identified them, but however, P.W.1 has stated in her cross-examination that she identified both the stones. Admittedly M.O.1 was not blood-stained. From these circumstances, we deem it not safe to conclude that it was M.O.1 stone with which the accused hit the deceased. Secondly, as rightly pointed out barring that day’s quarrel, there was no previous enmity between the accused and the deceased. Moreover, that day’s occurrence was not so serious which would have prompted or induced the accused taking such an extreme decision of finishing off the deceased. The materials available on record would only show that the accused wanted to attack the deceased because he objected to the removal of send and therefore, took a stone available on the floor and threw it on the deceased. We do not know the size and weight of the stone, but however, the stone hit had caused fracture of 6th rib and also caused some damage to the heart. Hence, that should be similar to M.O.1. We do not know the size and weight of the stone, but however, the stone hit had caused fracture of 6th rib and also caused some damage to the heart. Hence, that should be similar to M.O.1. In these circumstances, this Court can only come to the conclusion that the accused had no intention to cause the said injury and that he could not have had knowledge that such a stone throwing would result in an injury that would be sufficient in the ordinary course of nature to cause death. 11. As already noted, the deceased sustained a fracture of left 6th rib in the anterior aspect and some injury to the heart. In these circumstances, we are of the view that the accused can be held guilty only under Sec.326, Indian Penal Code and not under Sec.302, Indian Penal Code. In this view of the mater, we set aside the conviction and sentence against the appellant/accused under Sec.302, I.P.C. and instead convict him under Sec.326, I.P.C. and sentence him to undergo rigorous imprisonment for two years. 12. The appeal is allowed to the extent indicated above. 13. It is reported that the appellant/accused is on bail. Hence, the learned Sessions Judge, Dindigul shall take steps to commit him to jail to undergo the remaining period of sentence.