S.K.Krishnan, J.: Aggrieved by the judgment of the Principal Sessions Judge, Nagercoil, the appellant, who was convicted for the offence punishable under Sec.302, I.P.C., and sentenced to undergo imprisonment for life and imposed a fine of Rs.1000 in default to undergo S.I. for six months, has filed the above appeal. 2. Brief facts of the prosecution case are as follows: (a) P.W.1 Jayasekar and the deceased Vijili are brothers. They are living at Sendarai village. They are doing cooly work. These two persons along with their associates used to play cards at Vellappan Samy Vilai (Vellappan Pura Idam), after attending their cooly work. On 13.10.1999, between 6.00 and 9.30 p.m., the deceased Vijili ,P.Ws.1 to 4, Kumaradas, BoniBose and the accused Benjamin played cards. When they were playing cards, the deceased Vijili was in winning position in the game. However, the accused has given 14 cards to the deceased instead of 13 cards. When the deceased came to know about this fact, he questioned the accused as to why he has given 14 cards instead of 13 cards. There arose a wordy quarrel between the two at Vellappan Pura Idam. However, due to intervention of P.W.1 and other persons, who played along with the deceased and the accused, the accused and the deceased were separated. As a result of that the accused got irritated and humiliated. He left the place by murmuring something against the deceased. (b) Thereafter, the deceased and his brother and also other persons reached the road side and stood in front of Ponnappan bunk shop. Meanwhile, the deceased Vijili left from that place after informing his brother and others. While the deceased was proceeding towards eastern side, the accused all of a sudden came from behind the ration shop and waylaid him. There was a scuffle between the two and as a result of that the deceased fell down on the road side. The accused climbed upon the deceased and stabbed on his left chest. While both the deceased and the accused rolled down on the ground, the accused again inflicted several injuries on the body of the deceased. P.W.1 and others witnessed the said occurrence. However, they could not save the deceased from the attack of the accused. Thereafter, the accused ran away with the knife towards the western side. While both the deceased and the accused rolled down on the ground, the accused again inflicted several injuries on the body of the deceased. P.W.1 and others witnessed the said occurrence. However, they could not save the deceased from the attack of the accused. Thereafter, the accused ran away with the knife towards the western side. (c) P.Ws.1 to 4 and Kumaradas rushed to the spot and found bleeding injuries on the body of the Vijili and P.W.1asked P.W.4 Vijayaraghavan, to fetch a taxi. Thereafter, P.Ws.1 to 4 took the injured in the car and proceeded to the Government Hospital, Kottar and reached the hospital around 12.00 hours. (d) The doctor, who was on duty at the hospital, examined the injured Vijili and declared him dead. Thereafter, the doctor issued a death certificate Ex.P-10 and the same was received by the Sub-Inspector of Police, Kottar, around 23.15 hours. P.W.12 was working as a Sub-Inspector of Police attached to Pudukottai at the relevant point of time. He got information about the death of Vijili in the police station. Thereafter, he proceeded to the record a statement from P.W.1 between 1.10 a.m. and 1.45 a.m. Then, he returned to the police station around 3.30 a.m. and registered a case. Printed copy of F.I.R. is Ex.P-11. P.W.12 sent Ex.P-11 to the Court through a police constable. (e) P.W.14, received an information about the registration of the case around 4.00 a.m. and proceeded to the police station around 7.00 a.m. On receipt of a copy of the F.I.R., he immediately proceeded to Kottar Government Hospital and conducted inquest over the body of the deceased Vijili in the presence of witnesses. After the inquest was over, he prepared Ex.P-12 inquest report. Thereafter, he proceeded to the occurrence spot and prepared a rough sketch Ex.P-13. He also prepared an observation mahazar Ex.P-2 in the presence of P.W.6 and one Rajan. (f) P.W.14 recovered M.Os.8 and 9 under the cover of mahazar Ex.P-3. Thereafter, he proceeded to Vellappan Samy Vilai, wherein the deceased and the prosecution witnesses played cards between 6.00 p.m. and 9.30 p.m. on the previous day. He then recovered M.Os.5 to 7 under the cover of Ex.P-4 The said recovery was effected in the presence of P.W.7 Asirvadam and Dennis. Thereafter, P.W.14, entrusted the dead body to P.13 P.W.13, thereafter, met P.W.9 and handed over the requisition letter Ex.P-7 for conducting post-mortem examination. He then recovered M.Os.5 to 7 under the cover of Ex.P-4 The said recovery was effected in the presence of P.W.7 Asirvadam and Dennis. Thereafter, P.W.14, entrusted the dead body to P.13 P.W.13, thereafter, met P.W.9 and handed over the requisition letter Ex.P-7 for conducting post-mortem examination. (g) P.W.9 conducted post-mortem examination and found the following injuries. “Appearances found at the post-mortem. A moderately nourished symmetrical male body lies on back with eye-lids closed, mouth closed and tongue inside. The following external injuries found. 1. An incised wound in left chin 1- 1/2 x 1/2 x 1/2 cm oblique edges clean cut and margin raised. 2. A stab injury in left IIIrd intercostals space 5 cm from mid-sternal line. Size 1- 1/2 x 1 cm depth it enters into thoracic cavity. Edges clear cut margin raised. 3. Incised wound anterior aspect of left wrist 1 x 1/2 x 1/2 oblique, edges clear cut margin raised. 4. Abrasion on Left shoulder ½ x ½, edges raised. 5. A stab injury on left arm anterior aspect 1 x 1/2 x 2 cm oblique edges clear cut margin raised. On exploration on injury No.2 The track of the wound (N.C.) it travels downwards and inwards. The following structure cut, skin, subcutaneous tissue pericardical membrane and the heart. It penetrates into the head size 1 x 1/2 cm and entered the right ventricular cavity blood clot seen at the track site. On exploration of other injuries on corresponding internal injuries found. On opening thorax 2 litres of clotted blood seen in the thoracic cavity. Heart 250 gm c/s chambers empty. Lungs right 450 gm, left 400 gm. c/s pale Hyoid bone intact. On opening abdomen, stomach with contents 100 gm, contained 400 gm. Partially digested rice particles seen. No specific smell. Liver 1450 gm c/s pale spleen 110 gm. c/s pale each kidneys 125 c/s pale intestine normal bladder empty. On opening skull. No skull bone fracture. Brain 1500 gm.c/s pale. Post-mortem concluded at 1.10 p.m. Death would have occurred 12 to 18 hours prior to post- mortem.The deceased would appear to have died of shock and Haemorrhage due to injury to the heart.” (h) Ex.P-8. is the post-mortem report. After the post-mortem was over P.W.13 handed over the dead body of Vijili to his relatives. (i) In furtherance of the said investigation, P.W.14 enquired witnesses and recorded their statements. is the post-mortem report. After the post-mortem was over P.W.13 handed over the dead body of Vijili to his relatives. (i) In furtherance of the said investigation, P.W.14 enquired witnesses and recorded their statements. On 14.10.99 around 20.00 hours at Amsi Bus Stop, P.W.14 arrested the accused in the presence of P.W.8 and Rajesh and Rajan. Thereafter, the accused gave a statement before P.W.14. Ex.P-5 is the admissible portion of the confession statement. On the basis of Ex. P-5 P.W. 14 followed the accused. The accused brought M.O.1 and produced the same before P.W. 14 in the presence of the witnesses. P.W. 14 recovered the same under the cover of Athachi Ex.P-8. Since P.W.14 found some abrasions on the body of the accused, he sent the accused with a police memo for treatment. P.W.10 doctor, who examined the accused, gave a copy of the Accident Register Ex.P-9. (j) In furtherance of the said investigation P.W.14 recorded the statement of P.Ws.9 and 10. He sent a requisition letter Ex.P-14 to the Judicial Magistrate along with M.Os.1 and 2 requesting the Judicial Magistrate to send them for chemical analysis. On receipt of Ex.P-14 and the material objects M.Os.1 and 2 and M.Os.5 to 9, the Judicial Magistrate sent the same to chemical analysis with a covering letter Ex.P-14. After the analysis was over Exs.P-16 and 17 were received by the Sub-Inspector. P.W.15 continued the investigation, after P.W.14. He examined the remaining witnesses and recorded their statement. After the completion of the investigation. He filed a charge sheet. 3. On the side of the prosecution, fifteen witnesses have been examined, seventeen exhibits were filed and ten material objects were marked. 4. The accused was questioned under Sec.313, C.P.C., on the incriminating circumstances appearing against him and he denied all the incriminating circumstances. He did not examine any witness on his side. 5. On the basis of the oral and documentary evidence, the trial Court convicted and sentenced the appellant as aforesaid. Aggrieved by the same, the appellant has come forward with this appeal. 6. Heard both sides. 7. The case of the prosecution is that altogether seven persons, viz., P.Ws.1 to 4, the deceased, the accused and his brother, were playing cards at Vellappan Samy Vilai (Vellappan Pura Idam) between 6.00 and 9.30 p.m. On 13.10.1999. While they were playing cards, the deceased Vijili was in the winning position in the game. 6. Heard both sides. 7. The case of the prosecution is that altogether seven persons, viz., P.Ws.1 to 4, the deceased, the accused and his brother, were playing cards at Vellappan Samy Vilai (Vellappan Pura Idam) between 6.00 and 9.30 p.m. On 13.10.1999. While they were playing cards, the deceased Vijili was in the winning position in the game. However, while allocation of cards by the accused to the players, the accused Benjamin has allotted 14 cards instead of 13 cards. When the deceased came to know about such fact, he questioned the accused Benjamin. There arose a quarrel between the two. However, due to the intervention of the brother of the deceased Jayasekar and others, the accused and the deceased were separated. 8. At this juncture, the accused Benjamin got irritated and angry and uttered some words against the deceased, while leaving that place. Thereafter, the brother of the deceased and others proceeded to the main road and stood in front of the Ponnappan bunk shop for some time. Meanwhile, the deceased, after informing his brother P.W.1, left the place. While he was proceeding towards eastern side, near ration shop, the accused Benjamin came from the rear side of the ration shop and on seeing the deceased, all of a sudden, stabbed the deceased on his left side of the chest. As a result of that the deceased and the accused fell down and rolled down on the road side. The accused Benjamin climbed upon the deceased and again inflicted several injuries on the body of the Vijili by using a knife. This occurrence was witnessed by P.Ws.1 to 4. On seeing P.Ws.1 to 4, the accused Benjamin ran towards the western side and disappeared. 9. The learned counsel appearing for the appellant would vehemently contend that the alleged playing of cards by the accused as well as the deceased and others at Vellappan Pura Idam on the banks of the canal could not have taken place between 6.00 p.m. and 9.30 p.m. for the reason that such play could not have been played by them without light. 10. It is submitted by the learned counsel that as per prosecution case the said game was played by the accused and the deceased and others by lighting candles, however, the same fact has not been mentioned by P.W.1 while giving statement before the Sub-Inspector of Police P.W.12. 10. It is submitted by the learned counsel that as per prosecution case the said game was played by the accused and the deceased and others by lighting candles, however, the same fact has not been mentioned by P.W.1 while giving statement before the Sub-Inspector of Police P.W.12. The investigation officer P.W.14, who has recovered the material objects M.Os.5, 6 and 7 at Vellappan Pura Idam in the presence of the witnesses, has not recovered the candles. 11. It is vehemently contended by the learned counsel that such fact has not been stated in the statements given by P.Ws.1 to 4. In such circumstances, it is pointed out that the theory of lighting candle at Vellappan Pura Idam is an after thought to fill up the blanks in the prosecution case. 12. It is further contended by the learned counsel that following a quarrel erupted between the deceased and the accused at the spot, where, they played cards, the occurrence happened on the main road. In such circumstances, this infirmity would very much affect the very root of the prosecution case and this fact has not been considered by the learned Sessions Judge for arriving a just decision in this case. 13. Further, the learned counsel would point out that there is no motive for the accused to kill the deceased and it is only a case of sudden provocation and in the same heat of passion the accused caused injuries as a result of the death caused, and therefore, the prosecution failed to establish that there is an intention or motive to kill the deceased by the accused and therefore, the accused cannot be convicted under Sec.302, I.P.C., but he can be convicted only under Sec.304(ii), I.P.C. 14. With regard to the occurrence, the learned counsel appearing for the appellant would contend that the said occurrence would not have witnessed by P.Ws.1 to 4. None of the witnesses have stated about street light or lamp post which is situated in the occurrence spot. P.W.1 has also not stated anything about the lamp post while registering F.I.R. Like that the investigation officer also has not stated anything about this fact in the observation mahazar Ex.P-2. Even though the lamp post is mentioned in the rough sketch Ex.P-13, it is not shown whether the light is burning in the lamp post or not. P.W.1 has also not stated anything about the lamp post while registering F.I.R. Like that the investigation officer also has not stated anything about this fact in the observation mahazar Ex.P-2. Even though the lamp post is mentioned in the rough sketch Ex.P-13, it is not shown whether the light is burning in the lamp post or not. Therefore, the occurrence as stated by the prosecution could not have seen by P.Ws. 1 to 4. 15. Further, the learned counsel would point out that even P.W.3 could not have been present at the occurrence spot and seen the occurrence. Moreover, P.W.3 is a set up witness and a close relative to P.Ws.1 and 2. Like that of P.W.3, P.W.4 also could not have been present and seen the occurrence. 16. With regard to the recovery of M.Os.1 and 2 from the accused on the basis of the admissible portion of the confession statement. Ex.P-5, under Ex.P-6, the learned counsel would contend that it cannot be relied on, as the signature of the accused has not been obtained by P.W. 14, investigation officer. 17. Further, the learned counsel would point out that the medical evidence is also not helpful to the prosecution case for the reason that semi-digested food particles are present in the stomach of the deceased while conducting post- mortem examination by P.W.9. It would reveal that the deceased might have taken meals an hour prior to the occurrence. It is not the prosecution case that the deceased has taken his food an hour prior to the occurrence and none of the witness have spoken about this fact. 18. Further, the injuries found on the body of the deceased could not have been inflicted by the accused for the reason that the case of the prosecution is that the accused inflicted several injuries while rolling down on the road and therefore, it is not possible for anybody to inflict injuries while both the persons are rolling down on the ground and therefore, the case of the prosecution is not reliable and it is a cooked up one. In such circumstances, the judgment of the trial Court is not sustainable under law and therefore, the same is liable to be set aside. 19. Per contra, the learned Additional Public Prosecutor would submit that with regard to the motive on the deceased P.Ws.1 to 4 have categorically stated in their evidence. In such circumstances, the judgment of the trial Court is not sustainable under law and therefore, the same is liable to be set aside. 19. Per contra, the learned Additional Public Prosecutor would submit that with regard to the motive on the deceased P.Ws.1 to 4 have categorically stated in their evidence. It is pointed out that P.Ws.1, 2 and 4 have clearly spoken about the existence of the motive against the deceased. 20. This fact has been clearly discussed by the learned Judge while appreciating the evidence of P.Ws.1 to 4 in para.18 of the said judgment. In such circumstances, it is pointed out that the learned Judge appreciated the evidence adduced by P.Ws.1 to 4 with regard to the motive of the accused against the deceased and therefore, the learned Judge has come to conclusion that due to the strong motive against the deceased, the said occurrence took place. 21. With regard to light at the occurrence spot all the eye-witnesses P.Ws.1 to 4 have spoken about this fact elaborately. The evidence of P.Ws.1 to 4, in this regard, has been corroborated by the evidence of P.W.11. According to P.W.11, he switched on the light at about 6.00 p.m. and switched off the light only in the next morning. This fact has also been discussed by the learned Judge in para.30 of the said judgment. In addition to that this fact is also mentioned in rough sketch Ex.P-13 in item No.2. It is pointed out that such fct has so been referred by the investigation officer in Ex.P-2 Observation Mahazar. Incidentally, there was a moon light at the relevant point of time. 22. Further, it is contended that the prosecution proved the case with regard to motive and the presence of light at the occurrence spot through the evidence of P.Ws.1 to 4 and therefore, the learned Judge has rightly come to the conclusion that the case of the prosecution has been proved beyond reasonable doubt and that he convicted and sentenced the accused as afore said and therefore, the conviction and sentence are sustainable under law and no interference of this Court is warranted. 23. Further, the learned Additional Public Prosecutor would point out that some small discrepancies found in the prosecution case cannot be fatal to the prosecution case or such discrepancies would not put the genuineness of the prosecution case in doubt. 23. Further, the learned Additional Public Prosecutor would point out that some small discrepancies found in the prosecution case cannot be fatal to the prosecution case or such discrepancies would not put the genuineness of the prosecution case in doubt. 24 The main contention of the learned counsel is with regard to the probabilities of the cards played by the accused, the deceased and P.Ws.1 to 4 in the absence of light. This contention cannot be accepted by us for the reason that the said fact has been established by the prosecution through the evidence of P.W.7 Asirvadam. It is a fact that the material objects M.Os.5, 6 and 7 were recovered by P.W.14 under Ex.P-4 in the presence of P.W.7 and Dennis. This fact has been clearly spoken by P.W.7 and P.W.14. In addition to that P.Ws.1 to 4 have categorically stated about the playing of cards at Vellappan Pura Idam at the banks of the canal. 25. On a careful consideration of the above stated facts and materials available on records, the playing of cards at Vellappan Pura Idam by the accused, the deceased and others between 6.00 p.m. and 9.30 p.m., is categorically proved. 26. With regard to motive, though it is pointed out by learned Additional Public Prosecutor that motive of the accused against the deceased has been clearly established by the evidence of P.Ws.1 to 4, we are of the view that it can be a case of sudden provocation for the reason that when it was found by the deceased that the accused gave 14 cards instead of 13 cards to the deceased and the same was questioned by him, the accused suddenly provoked and had a quarrel with the deceased. When such provocation and quarrel was compromised by the co-players, the accused left the place and went to the occurrence spot in the same heat of passion and attacked the deceased, which resulted in the death of the deceased. 27. When such provocation and quarrel was compromised by the co-players, the accused left the place and went to the occurrence spot in the same heat of passion and attacked the deceased, which resulted in the death of the deceased. 27. When the accused had a sudden provocation and had a quarrel with the deceased and the same was compromised by the co-players, he left the place, where they played, and went with the same heat of passion to the occurrence spot and attacked the deceased with knife and caused the death of the deceased and when the above occurrence happened within 30 minutes, it cannot be said that there is motive or intention to the accused to kill the deceased, but it can be a case of sudden provocation. 28. In the above circumstances, we do not find that there is any motive or intention to the accused to kill the deceased. Rather we do find that it is a case of sudden provocation and in the same heat of passion the accused committed such an offence. 29. With regard to the availability of light at the occurrence spot, It is clearly spoken by P.Ws.1, 2, 3 and 11. As pointed out by the learned counsel that the deceased, the accused and the prosecution witnesses were already known to each other. Under such circumstances, following the said provocation against the deceased, the accused all of a sudden came from the ration shop and on seeing the deceased proceeding towards the eastern side, he stabbed the deceased on his left chest. 30. Further, as stated by the learned counsel that there was a moon light on that day. In such circumstances, P.Ws.1 to 4 and others could have seen the stabbing of the accused on the deceased in the light. Further, the said occurrence took place very near to the Ponnappan bunk shop. In such circumstances, P.W.s.1 to 4 and others could have seen the stabbing of the accused on the deceased in the light. Further, the said occurence took place very near to the Ponnappan bunk shop. In such circumstances, there is every possibility for the prosecution wit nesses P.Ws.1 to 4 to have witnessed the said occurrence at the occurrence spot. 31. Further, the said occurence took place very near to the Ponnappan bunk shop. In such circumstances, there is every possibility for the prosecution wit nesses P.Ws.1 to 4 to have witnessed the said occurrence at the occurrence spot. 31. In the above circumstances, we are of the view that it is proved by the prosecution that the accused stabbed the deceased and caused the death of the deceased. Medical evidence also corroborated the evidence of P.Ws.1 to 4 with regard to the overt act of the accused. 32. On a careful analysis of the entire case stated by the prosecution and also considering the relevant materials available on record, we are of the view that overt act of the accused has been proved by the prosecution, however, with regard to motive, the prosecution has not proved the case. 33. As we have already discussed above, when the above occurrence happened within 30 minutes from the time of starting of quarrel, it cannot be said that the accused has motive or intention to kill the deceased. It is also not the case of the prosecution that the accused after the quarrel, left the place, where they played, went to his house and brought the knife to kill the accused, then it can be considered that there is a case for motive and pre-meditation. It is also not the case of the prosecution that the accused has any motive or intention to kill the accused prior to the said incident. 34. In this case, when the important ingredients are absent, viz., intention, pre-meditation and motive, to attract Sec.300, I.P.C., the accused cannot be convicted under Sec.302, I.P.C. However, as has been held by the Supreme Court in Keshavalal v. State of Mahya Pradesh, 2002 M.L.J. (Crl.) 417, the appellant is entitled to the benefit of Exception 4, the crime committed by him would be culpable homicide not amounting to murder, which is punishable under Sec.304, I.P.C., 35. Further, the Supreme Court in the above said case held as follows: "There is nothing on record to show that the accused had pre-planned the execution of the offence. Further, the Supreme Court in the above said case held as follows: "There is nothing on record to show that the accused had pre-planned the execution of the offence. It is admitted even by the prosecution witnesses that the appellant had come unarmed at the residence of the parents of the deceased and after altercation he picked up a kitchen knife from that house by which he inflicted one injury on the person of the deceased. It appears that the appellant committed the offence without pre-meditation in a sudden fight, in the heat of passion upon a sudden quarrel which was not provoked by him. It has also come on record that the appellant was not taking any undue advantage during the occurrence. The offence cannot be said to have been committed in a cruel and unusual manner. The appellant accused was, therefore, entitled to the benefit of Exception 4 of Sec.300, I.P.C." 36. The principles laid down by the Apex Court are squarely applicable to the case on hand. 37. As we have already concluded that there is no intention or motive or pre-meditation to the accused to kill the deceased, the appellant can be convicted under Sec.304(ii), I.P.C., alone and not under Sec.302, I.P.C. 38. For the foregoing reasons, we have no hesitation to hold that the appellant cannot be convicted and sentenced under Sec.302, I.P.C., and we are of the view that the appellant can convicted under Sec.304(ii), I.P.C. 39. Accordingly, the appellant is convicted under Sec.304(ii), I.P.C., and sentenced to undergo rigorous imprisonment for five years. 40. In result, the appeal is partly allowed by modifying the conviction and sentence of the trial Court as indicated above.