Judgment :- M. Chockalingam, J. Challenging the judgment of the learned Principal Sessions Judge, Virudhunagar District at Sriviliputhur made in S.C.No.56 of 2003, the sole accused, who stood charged under Sections 302 IPC and Section 7 r/w S.25(1-AA) of the Arms Act, tried and found guilty under Section 302 IPC and awarded life imprisonment and to pay a fine of Rs.1000/-, in default to undergo one year RI, has brought forth this criminal appeal. 2. Theshort facts necessary for the disposal of this appeal can be stated thus: a) P.W.1 is the mother of the deceased Pandy. P.W.2 is the brothers wife of the deceased. P.Ws.1 and 2 were residing at Anbu Nagar, Aruppukkottai for a period of nearly 10 years. P.Ws.1 and 2, when they were residing at Anbu Nagar, were using the vacant site, which is situated nearby their house, for tethering their cattle. The accused family also were living nearby and they also used the vacant site for the same purpose. There were often quarrel between both the families, as the bulls of the accused, since they were not tied properly, used to come and take the oil cake and water of the cattle of the deceased family and hence, there arose a quarrel and both the families were not in talking terms. b) While the matter stood thus, on the day of occurrence, namely 12.04.2002, in the morning hours, the bull of the accused came over and dashed against the cow of P.Ws. On seeing this, the deceased Pandi questioned the same to the wife of the accused and also abused her. This occurrence took place during the absence of the accused, since he went to work. c) At about 9.00 p.m., when the accused returned home, the incident was informed by his wife Veluthai. On hearing this, the accused proceeded to the house of the deceased. In front of the house, P.Ws.1 and 2 and the deceased were sitting and chatting. At that time, the accused came there with Pattaknife, M.O.1 and questioned the deceased as to how you could abuse my wife in my absence. So saying, he attacked the deceased on his left hand and right leg and caused severe injuries. He fled away from the place of occurrence. P.Ws.1 and 2 have witnessed the occurrence. d) The deceased was taken in an Auto to the Aruppukkottai Government Hospital by P.Ws.1 and 2. So saying, he attacked the deceased on his left hand and right leg and caused severe injuries. He fled away from the place of occurrence. P.Ws.1 and 2 have witnessed the occurrence. d) The deceased was taken in an Auto to the Aruppukkottai Government Hospital by P.Ws.1 and 2. P.W.5, the Doctor attached to the Aruppukkottai Government Hospital, admitted the deceased at about 9.55 p.m. The deceased made a statement to P.W.5 that a known person has attacked him with knife at about 9.15 p.m. His statement was also recorded. The accident register copy was marked as Ex.P.6. P.W.9, the Inspector of Police of the respondent police station, on receiving the intimation from the Government Hospital, Aruppukkottai, went to the Hospital and recorded the statement of the deceased, which was marked as Ex.P.15, on the strength of which, a case came to be registered in Crime No.250 of 2002 under Sections 307 and 324 IPC. Ex.P.16, the express FIR was despatched to the Court. e) Following the same, P.Ws.1 and 2, on the advise given by the Doctor, took the deceased Pandi to the Rajaji Government Hospital, Madurai and admitted him. P.W.8, the Doctor attached to the Madurai Rajaji Hospital has admitted him as inpatient and gave treatment. Despite treatment, the deceased died at about 1.00 a.m. An intimation was forwarded to the respondent police. Following the same, the case was altered to Section 302 IPC. The express report was marked as Ex.P.18, which was also despatched to the Court. f) P.W.9, the Inspector of Police, took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.1, the observation mahazar and Ex.P.17, the rough sketch. Following the same, he also recovered bloodstained earth M.O.2 and sample earth M.O.3 from the place of occurrence under a cover of mahazar. Then, he proceeded to the Madurai Government Rajaji Hospital and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayardars and prepared Ex.P.19, the inquest report. The dead body of the deceased was sent for the purpose of autopsy along with a requisition. g) P.W.6, the Doctor attached to Madurai Medical College, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and has found the injuries. The dead body of the deceased was sent for the purpose of autopsy along with a requisition. g) P.W.6, the Doctor attached to Madurai Medical College, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and has found the injuries. He has issued Ex.P.8, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to injuries sustained. h) Pending investigation, the Investigator came to know that the accused surrendered before the Judicial Magistrate, Vilathikulam. A petition was filed for police custody and the same was ordered on 19.04.2002. The police took him to custody. The accused made a confessional statement, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.3. Pursuant to the same, the accused produced M.O.1, pattaknife, which was recovered in the presence of the witnesses under a cover of mahazar. The accused was again sent for judicial remand. All the M.Os recovered from the place of occurrence, from the dead body of the deceased and the M.O. recovered from the accused pursuant to the confessional statement were subjected to chemical analysis by the Forensic Science Department. Ex.P.11, the Chemical Analysts report and Ex.P.12, the Serologists report were received by the Court. On completion of the investigation, final report was filed by the Investigating Officer. 3. The case was committed to the court of sessions and necessary charges were framed. In order to substantiate the charges, the prosecution has marched 9 witnesses and relied on 19 exhibits and 4 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. On completion of the trial, the lower court heard the arguments advanced, considered the same and found the accused/appellant guilty as per the charge of murder and awarded life imprisonment, which was the subject matter of challenge before this Curt. 4. No defence witness was examined. On completion of the trial, the lower court heard the arguments advanced, considered the same and found the accused/appellant guilty as per the charge of murder and awarded life imprisonment, which was the subject matter of challenge before this Curt. 4. Advancing his arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the occurrence has taken place during night hours; that P.Ws.1 and 2 were close relatives of the deceased; that their evidence, if scrutinized carefully, will not stand the scrutiny and hence, it should have been registered; that even the Doctor s evidence also did not corroborate the ocular testimony; that added further the learned counsel that in the instant case, the alleged confession and recovery of M.O.1, pursuant to the confessional statement, were nothing but a subsequent introduction in order to strengthen the prosecution case and hence, the prosecution has not proved its case beyond reasonable doubt. 5. Added further the learned counsel that even assuming that the prosecution has proved the case that it was the accused, who attacked the deceased with M.O.1, pattaknife and caused his death, the act of the accused would not attract the penal provisions of murder for the reason that the accused has acted due to provocation. Even as per the prosecution case, when the accused was absent, the deceased shouted at and abused the wife of the accused and it was duly informed by the wife of the accused at about 9.00 p.m., when he returned home. The accused went to the house of the deceased and questioned him. Even as per the evidence of the witnesses, it could be seen that there was a quarrel preceded between the accused and the deceased and at the spur of moment and due to provocation, the accused has acted so and that, the attack was made only on non vital parts, which would indicate the fact that the intention of the accused was not to cause death. Under these circumstances, the act of the accused would not attract the penal provisions of murder, but it would be one culpable homicide, not amounting to murder. Hence, the same has got to be considered by this Court. 6. Heard the learned Additional Public Prosecutor on the above contentions. 7. Under these circumstances, the act of the accused would not attract the penal provisions of murder, but it would be one culpable homicide, not amounting to murder. Hence, the same has got to be considered by this Court. 6. Heard the learned Additional Public Prosecutor on the above contentions. 7. It is not the fact in controversy that one Pandi, the son of P.W.1, who was severely injured in an incident that took place at about 9.15 p.m. on 12.04.2002, was taken to Government Hospital, Aruppukkottai and after giving initial treatment, he was taken to the Rajaji Government Hospital, Madurai, where at about 1.00 a.m. he died. Thus, in order to substantiate the fact that the deceased died out of homicidal violence, the prosecution has examined post-mortem Doctor, through whom post-mortem certificate has been marked, wherein the Doctor has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. Apart from that the said fact was never questioned by the appellant/accused at any stage of proceedings. Hence, it has got to be safely recorded so. 8. In order to substantiate the fact that it was the accused, who attacked the deceased Pandi, the prosecution has marched two eyewitnesses, namely P.Ws.1 and 2, who are the close relatives of the deceased. On that ground alone, the court cannot disturb their evidence. The court is mindful of the caution made by the Apex Court that the test of careful scrutiny has got to be applied. After applying the test, the Court was satisfied that their evidence is convincing and acceptable. The lower court has marshalled the evidence properly and accepted the same and rightly too. Despite full cross-examination, their evidence remains unshaken. 9. Insofar as the ocular evidence through P.Ws.1 and 2 are concerned, the ocular testimony of P.Ws.1 and 2 had corroborated the medical evidence. The post-mortem Doctor has opined that the deceased would appear to have died out of shock and haemorrhage due to the injuries sustained. Apart from that, in the instant case, when the accused was in police custody, he gave a confessional statement and pursuant to the same, he produced M.O.1, pattaknife. The post-mortem Doctor has opined that the deceased would appear to have died out of shock and haemorrhage due to the injuries sustained. Apart from that, in the instant case, when the accused was in police custody, he gave a confessional statement and pursuant to the same, he produced M.O.1, pattaknife. Sufficient evidence in this regard was also adduced and this would indicate the nexus of the accused with the crime and thus, the prosecution, by sufficient evidence has proved the fact that it was the accused, who attacked the deceased at the time and place of occurrence with M.O.1 knife and caused his death. 10. Coming to the question of nature of the act of the accused is concerned the Court is able to see sufficient force in the contention put forth by the learned counsel for the appellant. In the instant case, even as per the prosecution case, during day hours, it was the deceased, who shouted at the wife of the accused and it was also reported to the accused by his wife at 9.00 p.m. Naturally one would expect the accused to question the same, since only during the absence of the accused, the deceased has questioned and shouted at the wife of the accused. When the accused questioned the same, even as per the evidence, there was a quarrel at about 10 minutes that preceded the occurrence and thus, it would be indicative of the fact that there was quarrel. 11. Apart from that, in the instant case, it was also noticed that the accused attacked the deceased on non vital parts and that he has attacked the deceased only on his hand and legs. Had it been the intention of the accused to cause the death of the deceased, he would have attacked the deceased on his vital parts, but he has not done so. Thus, it would be quite clear that he had no intention to cause death, but at the same time, it would be quite clear that the accused has attacked him on non vital parts. Coupled with the provocation and the quarrel that preceded the occurrence and also the fact that the accused has attacked the deceased on non vital parts, the act of the accused would not attract the penal provisions of murder, but it would be one culpable homicide not amounting to murder. Coupled with the provocation and the quarrel that preceded the occurrence and also the fact that the accused has attacked the deceased on non vital parts, the act of the accused would not attract the penal provisions of murder, but it would be one culpable homicide not amounting to murder. The Court is of the considered opinion that the act of the accused would attract the penal provisions of Section 304(I) IPC and awarding punishment of 7 years RI would meet the ends of justice. 12. Accordingly, the conviction and sentence imposed on the accused under Section 302 IPC are modified and instead, the accused/appellant is found guilty under Section 304(I) IPC and he is sentenced to undergo 7 years RI. The period of sentence already undergone by the accused/appellant is ordered to be given set off. The fine amount imposed by the lower court is affirmed. Insofar as the other charge under the provisions of the Arms Act is concerned, though there is sufficient evidence, in the opinion of the Court, the lower court has acquitted him, since it lacks proof. However, there is no appeal preferred in respect of the said charge. Under these circumstances, the findings of the lower court in this regard is also affirmed. 13. With the above modification in conviction and sentence, this criminal appeal fails and the same is dismissed.