Judgment :- M.Karpagavinayagam, J. Pandian, the appellant herein, who was convicted for the offence under Section 302 I.P.C. for having caused the death of his brother-in-law, and sentenced to undergo life imprisonment, challenges the same in this appeal. 2. Brief facts are summarised as follows: (a) P.W.3 Rajammal is the elder sister of the accused Pandian. She married Subban, the deceased in this case. The deceased Subban, at the time of marriage of the accused, gave a loan amount of Rs.2,000/- to the accused. After the marriage was over, the deceased Subban demanded for repayment of the loan amount, but the accused avoided to make payment. The accused was also spreading rumour among the villagers that the deceased had illicit intimacy with the sister-in-law of the accused. (b)The fateful occurrence took place on 23.3.1995. On that day at about 8.00 a.m., the deceased Subban was going near the old toddy shop and at that time, the accused was coming in the opposite direction. The deceased stopped him and quarreled with him as to why the loan amount has not been repaid. There was no proper reply from the accused and the deceased directed him to come to the Chairman for Panchayat. At that time the accused pushed the deceased and stabbed him with knife. He caused injury on the chest, leg arm and left toe of the deceased. Then he ran away. (c) This was immediately informed to P.W.3 Rajammal. She rushed to the spot. P.Ws.1 and 2, who are residing nearby, along with P.W.3 Rajammal, took the victim to the hospital at Rasipuram. (d) P.W.6 Dr.Natarajan admitted the deceased in the hospital and gave treatment. Ex.P.1 is the wound certificate. The matter was informed to the Police Station. The deceased was referred to Mohan Kumaramangalam Hospital at Salem. (e) In the meantime, on 23.3.1995 at 11.00 a.m, P.W.12 Govindan, the Head Constable, on receipt of information, went to the said Salem Hospital and examined the deceased and recorded a statement,(Ex.P.8) and obtained his thumb impression. A case was registered initially for the offence under Section 324 I.P.C He went to the scene of occurrence and observed all the formalities and examined the witnesses. (f) P.W.7 Dr.Mathivanan, the Assistant Professor in the Mohan Kumaramangalm Medical College Hospital, Salem, conducted surgery on the deceased. (g) On 24.3.1995. P.W.12 Head Constable arrested the accused and recovered M.O 1 knife. (f) P.W.7 Dr.Mathivanan, the Assistant Professor in the Mohan Kumaramangalm Medical College Hospital, Salem, conducted surgery on the deceased. (g) On 24.3.1995. P.W.12 Head Constable arrested the accused and recovered M.O 1 knife. On 16.4.1995 at about 3.40 a.m, the deceased died at the Salem Hospital. On receipt of the death information, P.W.12 altered the offence into one under Section 302 I.P.C. Message was sent to higher officials and Court on 17.4.1995. (h) P.W.13, the Inspector of Police took up investigation and conducted inquest over the body of the deceased and examined the witnesses. (i) On 17.4.1995 at about 12.45 p.m., P.W.9 Dr.Karthigeyan conducted post-mortem on the body of the deceased and found three injuries. He opined that the deceased died due to the injuries sustained by him. Ex.P.6 is the Post-mortem certificate. (j) Thereafter, he handed over the case to his successor, P.W.14, the Inspector of Police, who took up further investigation. After completing the investigation, he filed the charge sheet against the accused. 3. On the side of prosecution, P.W.1 to P.W.14 were examined, Exs.P1 to P.19 were filed and M.O.1 was marked. 4. The case of the accused, while he was questioned under Section 313 Cr.P.C, was one of denial. Ex.D.1 was marked on the side of defence. 5. As stated above,the trial Court convicted the accused for the offence under Section 302 I.P.C. Hence, the accused challenges the said conviction in this appeal. 6. Learned counsel for the appellant would submit that P.W.1 and P.W.3 the eye witnesses, have turned hostile. The only evidence as against the accused is the dying declaration (Ex.P.8) given by the deceased to P.W.12 Head Constable on 23.3.95 and also the Section 161 Cr.P.C. statement given by him,amely, Ex.P.14. It is also pointed out that since there is variation in Ex.P.8 and Ex.P.14, no importance can be attached to the evidence and the same is liable to be rejected. 7. However at the end, perceiving difficulty in arguing the matter for total acquittal, learned counsel for the appellant has rightly confined himself to the nature of offence in question. 8. We have given our learned Additional Public Prosecutor Mr.E.Raja, on these aspects. 9. We have given our thoughtful consideration to the submissions made by learned counsel for the parties. 7. However at the end, perceiving difficulty in arguing the matter for total acquittal, learned counsel for the appellant has rightly confined himself to the nature of offence in question. 8. We have given our learned Additional Public Prosecutor Mr.E.Raja, on these aspects. 9. We have given our thoughtful consideration to the submissions made by learned counsel for the parties. 10.There is no dispute in the fact that the prosecution was able to produce only, Ex.P.8-dying declaration and Ex.P.14 statement of the deceased, to connect the accused with the crime. Though P.Ws.1 and 2 were cited as eye witnesses, they turned hostile. P.W.3 the wife of the deceased, also did not give any direct material. As such, We are only left with Exs.P.8 and P.14. 11. It is settled law as laid down by the Supreme Court in 2003 Supreme Court Cases (Cri) 561 (STATE OF KARNATAKA VS SHARIFF) that the dying declaration can be the basis for conviction, if it is found to be trustworthy and acceptable in evidence, even though it is recorded by the Police. 12. In view of the above settled principle, as the dying declaration recorded in this case inspires confidence, we have no hesitation to hold that the prosecution has proved that the accused alone has caused injuries, resulting in the death of the deceased. However, we are of the view that the conviction imposed on the appellant for the major offence under Section 302 I.P.C. may not be proper, in view of the peculiar facts of this case and the same may be altered to a lesser offence. 13. A perusal of Exs.P.8 and P.14, the dying declaration and Section 161 Cr.P.C. statement, would reveal that the deceased, on the date of occurrence, was going along the road near the toddy shop and on seeing the accused coming in the opposite direction, the deceased picked up quarrel with the accused and demanded for repayment of loan amount and when the accused refused, he compelled him to come with him to the Chairman to conduct a Panchayat and when the wordy quarrel was going on for some time, the accused took out a knife and gave a blow on the chest of the deceased. Thereafter, the deceased was taken to the hospital. 14. The occurrence took place on 23.3.1995. Admittedly, the deceased died on 16.4.1995. Thereafter, the deceased was taken to the hospital. 14. The occurrence took place on 23.3.1995. Admittedly, the deceased died on 16.4.1995. P.W.7 Dr.Mathivanan would state that in Mohan Kumaramangalam Hospital, Salem, the deceased was able to talk before and after surgery, and he was conversing with everyone and therefore, he thought that it is unnecessary to request the Judicial Magistrate to record the dying declaration. Ultimately, due to the injuries sustained by the deceased and other complications, the deceased died on 16.4.1995. In such circumstances, we have to consider as to what is the nature of the offence committed by the accused. 15. There is no dispute in the fact that the deceased himself picked up quarrel with the accused and while the quarrel was going on, the accused took out a knife and caused injury on the chest of the deceased, which resulted in his death after 23 days. In the light of the above facts, we are of the view that the accused had inflicted injury on the chest of the deceased with the intention to cause injury as is likely to cause death. Therefore, he is liable to be convicted for the offence under Section 304-I I.P.C., instead of 302 I.P.C. 16. Thus, the conviction imposed on the accused for the offence under Section 302 I.P.C in S.C.NO.296/95 by the Principal Sessions Judge, Salem is set aside. Instead, the accused is convicted for the offence under Section 304 (I) I.P.C and sentenced to undergo Rigorous Imprisonment for seven years. 17. With the above modification in the conviction and sentence, the Criminal Appeal is dismissed. Since the accused is on bail, the trial Court is directed to take steps to secure his custody to undergo the remaining period of sentence.