Judgment :- (Appeal under Section 374(2) of Criminal Procedure Code against the judgment of the learned Principal Sessions Judge, Kanyakumari Division at Nagercoil, dated 07.01.2002, made in S.C.No.72 of 2000.) S. Ashok Kumar, J. The appellant is the sole accused in Sessions Case No.72 of 2000 on the file of Principal Sessions Judge, Kanyakumari Division at Nagercoil. He was tried for an offence punishable under Section 302 I.P.C., found guilty of the said charge, convicted thereunder and sentenced to undergo life imprisonment and also to pay a fine of Rs.1000/-, in default to undergo simple imprisonment for six months. Aggrieved over the said conviction and sentence, this appeal has been filed by the accused. 2. The facts of the prosecution case are briefly as follows. (a) P.W.1 Stalin is the brother of the deceased Stephen's father. The deceased was an Ex-Army man and after retirement, he was employed as a Driver in the State owned Thiruvallur Transport Corporation. Since his wife died two years earlier, he wanted to leave Kadiyapattinam and wanted to live at Eranaile, for which purpose he sought the help of P.W.2 Anandan to find a house for rent. For the said purpose, on 03.10.1999, P.W.2 Anandan and the deceased went to the house of the friend of P.W.2 at Maniyankuzhi and met him at 5.30 p.m. and after fixing the house rent at Rs.300/- per month, they got the key of the house and thereafter they cleaned the house upto 9.30 p.m. to make it fit for living. (b) After 9.30 p.m., P.W.2 Anandan and the deceased came to the shop of P.W.4 and were taking dosa and one Johnson was serving them. At that time, the accused came there and sat in the same table near P.W.2 and the deceased and he asked the server Johnson to supply dosa first to him. At that time, P.W.4, the owner of the shop, asked the accused to be calm and patient, but the accused picked-up a quarrel with the deceased and used abusive language towards him. The accused challenged the deceased to come out of the shop. (c) After dinner, P.W.2 and the deceased came out of the hotel and all of a sudden, the accused took M.O.1 knife and stabbed on the right chest of the deceased. The deceased fell down. Immediately, P.W.2 went to the house of P.W.1, which is half-a-kilometre away and informed P.W.1. (c) After dinner, P.W.2 and the deceased came out of the hotel and all of a sudden, the accused took M.O.1 knife and stabbed on the right chest of the deceased. The deceased fell down. Immediately, P.W.2 went to the house of P.W.1, which is half-a-kilometre away and informed P.W.1. P.W.1 accompanied P.W.2 to the place of occurrence and thereafter they engaged a taxi belonged to P.W.6 and took the injured to CSI Hospital at Neyyoor at about 10.30 p.m. When they reached the said hospital at 11.10 p.m., P.W.9 Dr.Hubert examined the injured and declared that he was dead. Ex.P-6 is the Accident Register pertained to him. Ex.P-7 is the death intimation sent to police. (d) Immediately, P.Ws.1 and 2 wrote a complaint, in which P.W.1 signed, and gave the complaint at 00.30 a.m. on 4.10.1999 to P.W.11 Sub Inspector of Police of Eranaile Police Station. Based on Ex.P-1 complaint, P.W.11 Sub-Inspector of Police registered a case in Crime No.770 of 1999 for an offence under Section 302 I.P.C. and prepared Ex.P-10 printed first information report and despatched the same to Court and the copies to the higher authorities. (e) P.W.12 Inspector of Police, on receipt of copy of Ex.P-10 FIR, took up the investigation, visited the place of occurrence, made an observation and prepared Ex.P-2 Observation Mahazar in the presence of P.W.5 and one Vijayan. He also prepared Ex.P-11 rough sketch in the presence of same witnesses. P.W.12 seized M.O.4 bloodstained earth and M.O.5 sample earth under Ex.P-3 mahazar. From 09.00 a.m. to 11.30 a.m., he conducted inquest on the body of the deceased at CSI Hospital at Neyyoor and prepared Ex.P-12 Inquest report. During inquest, he enquired some witnesses and recorded their statements. Thereafter, he sent Ex.P-8 requisition to the Medical Officer, Government Hospital, Kulachal, to conduct autopsy on the body of the deceased. (f) P.W.10 Dr.Rosith conducted autopsy on the body of the deceased between 1.30 p.m. and 2.30 p.m. on 4.10.1999 and found the following injuries. "External injury: An elliptical incised obliquely placed wound of 4 x 2 cm below the medial end of right clavicle. On Exploring:The wound passes obliquely downwards and medially for 6 cm through the intercostal space between the right I & II ribs near the lateral right border of sternum and entering into the thoracic cavity right. "External injury: An elliptical incised obliquely placed wound of 4 x 2 cm below the medial end of right clavicle. On Exploring:The wound passes obliquely downwards and medially for 6 cm through the intercostal space between the right I & II ribs near the lateral right border of sternum and entering into the thoracic cavity right. There is an oblique black coloured punctured wound of 1 cm in the superior venacava. Haematoma (black) seen in the adjacent tissues. About 500 ml blood (black) present in the right thoracic cavity. Skull:No fracture. Brain: Weighs 100 gm. C/S.pale. Neck: Hyoid intact. Heart:weighs 150 gm. Cambers empty. Lungs: Right 450 gms., Left:400 gms. Stomach:contained 400 gms. undigested food. Liver: weighs 100 gm. C/s.Pale. Spleen: Weighs 100 gm. C/s.Pale. Kidney; Each 100 gm. C/s.Pale. Bladder: 50 ml. Urine." P.W.10 gave Ex.P-9 postmortem certificate opining that the deceased would appear to have died of shock and haemorrhage due to injury to superior venacava. (g) Continuing the investigation, P.W.12 Inspector of Police on 06.10.1999 at 10.00 a.m., arrested the accused near Villukkuruchi Kuruchadi Nagercoil bus-stop in the presence of P.W.8 and one Mahesh. The accused volunteered to give a confession statement and the admissible portion of it is Ex.P-4. The accused took the Inspector of Police and the witnesses to a bush behind Sasthakoil, from where he took and produced M.O.1 knife, which was seized by P.W.12 under Ex.P-5 mahazar. The accused was remanded to judicial custody. At the request of P.W.12, the learned Judicial Magistrate sent a requisition letter to the Forensic Laboratory to examine the case properties. Ex.P-15 is Chemical Examiner's Report and Ex.P-16 is Serologist's Report. After completion of investigation, P.W.12 Inspector of Police filed final report against the petitioner under Section 302 I.P.C. 3. Before the learned Sessions Judge, on behalf of the prosecution, P.Ws.1 to 12 were examined as witnesses and Exs.P-1 to P-16 and M.Os.1 to 6 were marked. On behalf of the accused, no witness was examined and no document was marked. When the accused was questioned under Section 313 Cr.P.C. about the incriminating circumstances found in the evidence of prosecution witnesses, the accused denied them either as false or not known. On behalf of the accused, no witness was examined and no document was marked. When the accused was questioned under Section 313 Cr.P.C. about the incriminating circumstances found in the evidence of prosecution witnesses, the accused denied them either as false or not known. On consideration of oral and documentary evidence produced on behalf of the prosecution, the learned Sessions Judge came to the conclusion that the charge framed against the accused under Section 302 I.P.C. has been proved and convicted the accused thereunder and sentenced him to undergo life imprisonment and also to pay a fine of Rs.1000/-Hence this appeal. 4. Before this Court, Ms.Krishnapriya, learned counsel appearing for the appellant, would contend that P.W.2 could not be the eye-witness and if he was an eye-witness, he himself could have set the law in motion, instead of P.W.1, who is not an eye-witness, that when the occurrence has taken place in a public place where there are number of shops, no other independent witness was examined and further that the accused is aged only 17 years at the time of alleged occurrence and on the date of occurrence he was a juvenile. Per contra, learned Additional Public Prosecutor Mr.K.Radhakrishnan, would contend that apart from the evidence of P.W.2, there is the evidence of P.W.4 the owner of the hotel in whose shop there was a quarrel between the accused and the server Johnson in which the deceased intervened and became the victim and according to the learned Additional Public Prosecutor, the ocular testimony of P.Ws.1 and 4 corroborate with medical evidence. 5. We have given our anxious consideration to the rival contentions made by the counsel on either side. 6. P.W.2, though he is said to have some enmity with the accused, is a natural witness, since he accompanied the deceased from morning till evening for the purpose of settling a house for rent to the deceased, who wanted to live in Eranaile after the death of his wife two years ago. 6. P.W.2, though he is said to have some enmity with the accused, is a natural witness, since he accompanied the deceased from morning till evening for the purpose of settling a house for rent to the deceased, who wanted to live in Eranaile after the death of his wife two years ago. For that purpose, they have gone to Maniyankuzhi and fixed a house for a rent of Rs.300/- per month and got the key only at 5.30 p.m. According to P.W.2, thereafter they cleaned the house till 9.30 p.m. to make it fit for occupation and thereafter both of them came to the hotel of P.W.4 to take dinner and while they were taking dinner and the server of the Hotel by name Johnson was serving them, the accused came there and sat in the same table where P.W.2 and the deceased were taking dinner and he wanted the server to serve him first and a wordy altercation arose between the server and the accused, in which the deceased intervened and warned the accused not to use abusive language. 7. Therefore, it is clear that a wordy quarrel arose between the accused and the deceased and after taking food, the accused challenged the deceased and went outside the shop and when P.W.2 and the deceased came out from the shop, the accused inflicted one stab injury on the right chest of the deceased which proved to be fatal. Apart from the evidence of P.W.2, there is the evidence of P.W.4, the shop owner, in whose presence the occurrence took place and it cannot be denied. It is true that P.W.3 has turned hostile. It is also true that other witnesses in the locality, like shop keepers, have not been examined on behalf of the prosecution. But, the evidence of P.Ws.2 and 4 is cogent and clear and the presence of P.W.4 in the place of occurrence cannot be disputed, because the wordy quarrel arose inside his shop and outside his shop the occurrence took place. The occurrence has taken place five feet away from the shop and therefore the presence of P.W.4 cannot be suspected. 8. The occurrence is said to have taken place at 10.30 a.m. in the night and the case came to be registered at 00.30 hours on the early hours of next day and the FIR reached the concerned court at 1.30 a.m. itself. 8. The occurrence is said to have taken place at 10.30 a.m. in the night and the case came to be registered at 00.30 hours on the early hours of next day and the FIR reached the concerned court at 1.30 a.m. itself. Thus, it is clear that there is no delay either in making complaint about the occurrence to the police or in preparing the first information report or in the FIR reaching the Court. 9.Though after the arrest, M.O.1 knife was recovered from the accused, since the accused has stated in his confession that he has washed the knife, the same was not sent by the investigation officer for chemical examination and thus there is no scientific proof that M.O.1 knife, said to have been recovered from the accused contained any blood. However, the evidence of P.Ws.2 and 4 will conclusively prove that it was this accused who caused injury on the deceased. 10.The learned counsel for the appellant would contend that there is no prior motive between the deceased and the accused, there is no intention on the part of the accused to cause the death of the deceased and in a sudden wordy quarrel the deceased might have used provoking language against the accused, who is a boy of 17 or 19 years and in a sudden fit of anger, he might have stabbed the deceased and, therefore, the offence alleged to have been committed by the accused can at the worst come under Section 302(2) I.P.C. and not under Section 302 I.P.C. and in support of her above submission, she relied on certain judgments of the Apex Court, wherein in similar circumstances, the accused were punished under Section 304(2) IPC instead of under Section 302 IPC. 11.In 1983 (2) SCC 342 (Jagtar Singh V. State Of Punjab), the Supreme Court has held as follows: - "8.The next question is what offence the appellant is shown to have committed? In a trivial quarrel the appellant wielded a weapon like a knife. The incident occurred around 1.45 noon. The quarrel was of a trivial nature and even in such a trivial quarrel the appellant wielded a weapon like a knife and landed a blow in the chest. In a trivial quarrel the appellant wielded a weapon like a knife. The incident occurred around 1.45 noon. The quarrel was of a trivial nature and even in such a trivial quarrel the appellant wielded a weapon like a knife and landed a blow in the chest. In these circumstances, it is a permissible inference that the appellant at least could be imputed with a knowl3edge that he was likely to cause an injury, which was likely to cause death. Therefore, the appellant is shown to have committed an offence under section 304 Part II of the IPC and a sentence of imprisonment for five years will meet the ends of justice." 12. In 1984 (2) SCC 133 (Tholan V. State Of Tamil Nadu), it has been held as follows: - "12. It is equally not in dispute that appellant gave only one blow with a knife. Appellant had no quarrel or dispute with the deceased Sampat. It is not shown that deceased Sampat had anything to do with the chit organised by K.G.Rajan. No malice has been alleged to have been entertained b the accused towards deceased Sampat. The incident occurred on the spur of the moment. It appears that the house of the deceased Sampat was somewhere near the house in which the organisers or at least one of them was residing. Appellant had his dispute and grievance with the organisers of the chit. It is the prosecution case that the accused abused organisers of the chit. Deceased Sampat is not shown to be the organiser of the chit. Probably when the deceased Sampat told the accused not to misbehave in the prsence of ladies and not to use vulgar and filthy language, the appellant retorted by questioning the authority of Sampat to ask him to leave the place. Presence of Sampat is wholly accidental. Altercation with Sampat was on the spur of the moment, even the meeting was accidental. There arose a situation in which appellant probably misguided by his own egocentric nature objected as to why Sampat should ask him to leave the place and in this background he gave one bow with a knife which landed on the right side chest of the deceased which has proved fatal. Could the appellant be said to have committed murder? There arose a situation in which appellant probably misguided by his own egocentric nature objected as to why Sampat should ask him to leave the place and in this background he gave one bow with a knife which landed on the right side chest of the deceased which has proved fatal. Could the appellant be said to have committed murder? In other words, whether Part I or Part III of Section 300, IPC would be attracted in the facts of this case. Even Mr.Rangam learned counsel for the State of Tamil Nadu could not very seriously contend that the appellant intended to commit murder of Sampat. His submission was that at any rate appellant, when he wielded a weapon like a knife and gave a blow on the chest, a vital part of the body, must have intended to cause that particular injury and this injury is objectively found by the medical evidence to be fatal and therefore Part III of Section 300 would be attracted. On this aspect the decisions are legion and it is not necessary to recapitulate them here merely to cover idle parade of familiar knowledge. One can profitably refer to Jagrup Singh V. State of Harayana, Randhir Singh V. State of Punjab, Kulwnat Rai V. State of Punjab and Hari Ram V. State of Haryana. To this list two more cases can be added: Jagtar Singh Vs. State of Punjab and Ram Sunder v. State of U.P. Having regard t the ratio of each of these decisions, we are satisfied that even if Exception I is not attracted, the requisite intention cannot be attributed to the appellant. But in the circumstances herein discussed he wielded a weapon like a knife and therefore he can be attributed with the knowledge that he was likely to cause an injury which was likely to cause death. In such a situation, he would be guilty of committing an offence under Section 304 Part II of the Indian Penal Code. Having regard to the circumstances of the case, a sentence of 5 years would be quite adequate." 13. In AIR 1994 SC 34 (JOSEPH V. State OF KERALA), Their Lordships of the Supreme Court have held thus: - "3. Having regard to the circumstances of the case, a sentence of 5 years would be quite adequate." 13. In AIR 1994 SC 34 (JOSEPH V. State OF KERALA), Their Lordships of the Supreme Court have held thus: - "3. In this appeal the leaned counsel for the appellant submits that the intention to cause the injury which was found sufficient to cause the death in the ordinary course of the naure was not established. In support of this submission he relied on the circumstances namely that the whole incident took lace because of a trivial incident which resulted in a quarrel and that the weapon used was only a lathi and in the circumstances it cannot be aid that the accused intended to cause the death by inflicting that particular injury which objectively was proved by the medical evidence to be sufficient in the ordinary course of nature to cause death. In other words he submits that clause 3 of S.300, IPC is not attracted in this case. We find considerable force in the submission. The weapon used is not a deadly weapon as rightly contended by the learned counsel. The whole occurrence was a result of a trivial incident and in those circumstances the accused dealt two blows on the head with a lathi, therefore, it cannot be stated that he intended to cause the injury which is sufficient at the most it can be said that by inflicting such injuries he had knowledge that he was likely to cause the death. In which case, the offence committed by him would be culpable homicide not amounting to murder. We accordingly set aside the conviction of the appellant under S.302, IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict the appellant under S.304 Part II IPC and sentence him to five years R.I." 14.In the decision in Bhera Vs. State Of Rajasthan ( (2001) 10 SCC 225 , the Apex Court has held as follows. "2.... From the evidence of P.Ws.2 and 3 it is crystal clear that the accused and the deceased had some quarrel in the house of Bhana. On the road while they quarrelled with each other, suddenly the accused brought out the knife and gave the blow which struck the chest of the deceased. "2.... From the evidence of P.Ws.2 and 3 it is crystal clear that the accused and the deceased had some quarrel in the house of Bhana. On the road while they quarrelled with each other, suddenly the accused brought out the knife and gave the blow which struck the chest of the deceased. On these facts, it is difficult to hold that the accused gave the blow with the requisite intention of causing murder of the deceased. In this view of the matter, the conviction of the appellant under Section 302 cannot be sustained. Since in anger while quarrelling, the accused had given the blow, which ultimately resulted in the death of the deceased, the offence would be one under Section 304 Part II. We, therefore, set aside the conviction of the appellant under Section 302 and instead convict him under Section 304 Part II and sentence him to 5 years." 15.The facts of the cases referred to above are also similar to the facts of this case, in the sense that (i) there is no motive or enmity between the accused and the deceased (2) there is no intention on the part of the accused to cause the death of the deceased (3)the accused has inflicted only one injury in a sudden wordy quarrel in a fit of anger and thus the offence alleged to have been committed by the accused would fall only under Section 304(2) IPC. In the above circumstances, the conviction of the appellant under Section 302 I.P.C. and sentencing him for life imprisonment by the trial court is liable to be modified into one under Section 304(2) IPC and we are of the opinion that a sentence of five years rigorous imprisonment would meet the ends of justice. 16.Accordingly, we set aside the conviction of the appellant/accused under Section 302 IPC and also the sentence imposed thereunder and instead, the appellant/accused is convicted under Section 304(2) IPC and sentenced to undergo rigorous imprisonment for five years. The period already undergone by the appellant/accused before trial and after trial shall be given set off. This appeal is disposed of with the above modification in the conviction and sentence.