Judgment :- R. Regupathi, J. The appellant, sole accused in the case was convicted for the offence punishable under Section 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.500/- in default to undergo simple imprisonment for 6 months. Aggrieved against the conviction and sentence, the present appeal. 2. The allegation put forward as per the charge framed against the appellant is that on 3. 2002 due to previous enmity between the accused and the deceased, the accused pushed him down and thrown a big stone on his head in the result, the deceased died instantaneously thereby committed an offence punishable under Section 302 IPC. When the appellant was initially questioned, he denied the complicity of the commission of the offence and pleaded innocence. Therefore, the trial of the case has been taken up. The prosecution to substantiate its case, examined P.Ws. 1 to 13, marked Exs.P.1 to P.17 and produced Material Objects 1 to 11. 3. P.W.1 is the father of the deceased. It is his evidence that the accused and the deceased were friends and the deceased borrowed Rs.100/= from the accused. When the accused demanded repayment of the money, it was refused and there was a quarrel on account of that. Ten days prior to the date of occurrence, the accused came in search of the deceased and told his father P.W.1, that the deceased dodging repayment of the amount of Rs.100/= and when questioned answers in a derogatory manner and requested P.W.1 to caution him. This was informed by P.W.1 to the deceased. On 3. 2002, at 10.00 pm., when P.W.1 was returning from the temple found the accused and the deceased quarrelling with each other. The deceased questioned the accused as to how can he go and see his father demanding money, since he has done so, he will not repay the money and further challenged that he could do anything. Further more, the deceased caught hold of the accused and slapped him on his cheek. The accused thereafter challenged the deceased that he will die in his hands only. On 3. 2002, at 2.30 pm., finding that the deceased did not return home, P.W.1 went out in search of him. A music concert was going on in the village and people were returning after attending the same. The accused thereafter challenged the deceased that he will die in his hands only. On 3. 2002, at 2.30 pm., finding that the deceased did not return home, P.W.1 went out in search of him. A music concert was going on in the village and people were returning after attending the same. On the way, P.W.1 found the accused and the deceased quarrelling with each other and at that time, the accused pushed the deceased down and thrown a big stone on his head, due to which, the head of the deceased got crushed and died at the spot. After informing the occurrence to the son and others, went to the police station and lodged complaint Ex.P.1. He identified the M.O.1 stone thrown at the deceased. P.W.12, Sub Inspector of Police, Kumarapalayam Police Station on 3. 2002 at 5.00 a.m., received the complaint Ex.P.1 given by P.W.1 and registered a case in Crime No: 270 of 2002 for an offence punishable under Section 302 IPC. Ex.P.16 is the FIR and the copies of the same have been sent to the Judicial Magistrate and superior police officers. 4. P.W.2 also resides in the same village and knew both the accused and the deceased. He has been examined to substantiate the motive part of the case of the prosecution as well as as an eye witness. He has corroborated with the evidence of P.W.1. P.W.6 is also another eye witness. He has also corroborated the evidence of P.Ws 1 and 2. P.W.5 witnessed the quarrel of the deceased with the accused that took place in front of his house and at that time he made an attempt to compromise the issue. But the accused quarreled with him and therefore he went inside his residence and was sleeping. Suddenly on hearing the noise, he came out and found a crowd assembled and seen the dead body of the deceased and his head crushed. When the police came to the scene of occurrence by 6.30 pm., he was examined. P.W.4 is the wife of the deceased who has been examined to substantiate the motive for the case of the prosecution. It is her evidence that the deceased borrowed Rs.100/= from the accused and it was not returned. The accused came to his residence and made a demand for repayment of the money and it was informed to the accused. P.W.4 is the wife of the deceased who has been examined to substantiate the motive for the case of the prosecution. It is her evidence that the deceased borrowed Rs.100/= from the accused and it was not returned. The accused came to his residence and made a demand for repayment of the money and it was informed to the accused. On the date of occurrence, he came to know about the death of the deceased caused by the accused. 5. P.W.13, Inspector of Police on 3. 2002 at 6.00 a.m., on receipt of the FIR, reached the scene of occurrence and prepared Rough Sketch Ex.P.16, Observation Mahazar Ex.P.5 and conducted inquest on the dead body and examined the witnesses. Ex.P.17 is the Inquest Report. A requisition was sent through P.W.10, Head Constable for conducting autopsy over the dead body of the deceased. Bloodstained earth and sample earth from the scene of occurrence have been recovered. P.W.3, Medical officer, Government Hospital, Kumarapalayam, who received the requisition Ex.P.3 on 3. 2002 at 10.30 a.m., conducted autopsy over the dead body of the deceased and found the following external and internal injuries: "A bruise wound between both eye brows about 0.5 cm diameter. Bruise wound on back of head on right side with blood oozing. Small cut injury below lower lip on left and right side of it. A cut injury above right leg 2x5x5 cm. Skull: Fracture of skull extending from centre of fore head involving frontal, right temporal, occipital on left temporal, bone with collection of blood inside the skull about 200 ml,. Fracture of bridge of nose with depression. Base of skull fracture extending between nose and ear. Multiple bleeding in right and left frontal lobe f brain. Brain weight 1300 gms." 6. He has given the opinion that the deceased appear to have died of severe cerebral bleeding and shock due to severe damage to brain. Ex.P.4 is the Postmortem Report. 7. Bloodstained cloths found on the dead body of the deceased viz., M.Os.4,9,10 and 11 were recovered under Form 95. Bloodstained cloths, earth, sample earth and other material objects were despatched by the learned Judicial Magistrate to receive the opinion from the Chemical Analyst. On 13. Ex.P.4 is the Postmortem Report. 7. Bloodstained cloths found on the dead body of the deceased viz., M.Os.4,9,10 and 11 were recovered under Form 95. Bloodstained cloths, earth, sample earth and other material objects were despatched by the learned Judicial Magistrate to receive the opinion from the Chemical Analyst. On 13. 2002 at 10.00 a.m., the accused was arrested in the presence of P.W.8 and another witness and in pursuance of the voluntary statement given by the accused, bloodstained shirt M.O.8 and lungi M.O.5 were recovered under a cover of mahazar. He has caused photographs to be taken through P.W.9. P.W.11, Head Clerk of the Judicial Magistrates Court speaks about the receipt of the reports from the Chemical Analyst. P.W.13, Investigation Officer examined the Medical Officer and on conclusion of the investigation filed final report against the accused on 33. 2002 for the offence punishable under Section 302 IPC. 8. On conclusion of the examination of the prosecution witnesses, the accused was questioned under Section 313 Cr.P.C., with regard to the incriminating materials appearing in the evidence, for which the accused denied complicity of the commission of the offence and pleaded innocence. The learned Trial Judge, on hearing both the parties, convicted and sentenced the accused as mentioned above. Aggrieved of the same, the present appeal. 9. Learned counsel for the appellant submits that P.W.1 is the father of the deceased and he is an interested witness. The occurrence took place during night time. The eye witnesses in the case namely, P.Ws.1, 2 and 6 could not have witnessed the occurrence in view of the reason that there was a festival function and music concert was going on and a large crowd gathered in the village and during night time, the deceased could have been assaulted by some unknown assailants and in view of the reason that there was a quarrel with regard to non payment of money borrowed by the deceased, a false case has been foisted on the accused. 10. Placing reliance upon the evidence of the Investigating Officer, P.W.13 in his cross examination, the learned counsel for the appellant submitted that the accused was arrested on the same date and the evidence of P.W.13, who speak about the arrest of the accused subsequently on 13. 10. Placing reliance upon the evidence of the Investigating Officer, P.W.13 in his cross examination, the learned counsel for the appellant submitted that the accused was arrested on the same date and the evidence of P.W.13, who speak about the arrest of the accused subsequently on 13. 2002 must be disbelieved and even so, the recovery part of the case of the prosecution also will go and under such circumstances the case of the prosecution is not established and pleaded for innocence. 11. Per contra, the learned Additional Public Prosecutor submits that it is the evidence of the eye witnesses that there was electric lamp at the scene of occurrence. It is the festival day wherein music party has been arranged and the street lights were burning. This has been spoken to by all the witnesses. P.W.1 has also mentioned about the presence of the light in the FIR itself. The evidence of P.W.1, who is the father of the deceased is quite natural and as per his evidence, he went in search of the deceased since he did not return home during late night and went out in search of him and seen the occurrence only at that time. After hearing a noise, he went to the scene of occurrence and found the accused and the deceased were quarrelling with each other and only at that time, the accused pushed down the deceased on the ground and thrown a big stone on his head. P.W.2 also speaks about the quarrel between the accused and the deceased for non payment of money borrowed by the decease from the accused. P.w.2 is an independent eye witness and P.W.6 is another eye witness and their evidence is natural and they do not have any axe to grind. Those eye witnesses have also corroborated the evidence spoken to by P.W.1. P.W.4 wife of the deceased speak about the motive part of the case of the prosecution. P.W.5 speak about the quarrel which took place prior to the time of occurrence and his intervention to compromise the dispute between the accused and the deceased. Coupled with the ocular testimony of the eye witnesses and other witnesses, it is submitted that the case of the prosecution has been substantiated. P.W.5 speak about the quarrel which took place prior to the time of occurrence and his intervention to compromise the dispute between the accused and the deceased. Coupled with the ocular testimony of the eye witnesses and other witnesses, it is submitted that the case of the prosecution has been substantiated. Through the examination of the medical witnesses it has been proved that the death of the deceased was due to the homicidal violence namely throwing a big stone by the accused on the head of the deceased. Even on the previous day, the accused after receiving a slap from the deceased ventured to kill the deceased and only in continuation of the same, the occurrence had taken place in the same night and therefore it is submitted that the trial court has rightly convicted the accused for the offence under Section 302 IPC. 12. We have perused the materials available on record and considered the rival submissions of the learned counsel for the appellant and the learned Additional Public Prosecutor. 13. Admittedly, the accused and the deceased are friends living in the same village. The deceased borrowed Rs.100/= from the accused and in spite of repeated requests by the accused, it was not repaid and the deceased had gone to the extent of saying that he will not give and the accused can do whatever he want. On the same night, at about 10.00 pm., a quarrel ensued between the accused and the deceased, since the accused went in search of the deceased to his residence on the previous occasion for the purpose of demanding money. On a perusal of the evidence of P.W.1, we could see his evidence is quite natural without any embellishment. Though the deceased was his son, nothing has been suppressed by him. It is his evidence that during the course of the quarrel, it the deceased who was challenging the accused for non paying the money and further the deceased caught hold of the shirt of the accused and slapped him. This quarrel had taken place at 10.00 pm., on the same date. P.W.1 without any suppression has stated that the deceased is at fault and he is the aggressor. He has further stated that the accused after receiving a slap from the deceased stated that he will revenge for the act done by the deceased. This quarrel had taken place at 10.00 pm., on the same date. P.W.1 without any suppression has stated that the deceased is at fault and he is the aggressor. He has further stated that the accused after receiving a slap from the deceased stated that he will revenge for the act done by the deceased. Only under such circumstances, the occurrence took place in the same night at 2.30 pm., It is the evidence of the eye witnesses that there was a quarrel going on between the accused and the deceased for some time and it was declared by both of them as a prestige fight. We could see from the material evidence of the prosecution that though on the earlier occasion the accused has stated that he will revenge the deceased, he never carried any weapon along with him. During the course of the quarrel, it is case of the prosecution that the deceased was pushed down on the ground and a stone lying nearby the scene of occurrence was thrown on the head of the deceased and thereby the deceased sustained injury. Though the deceased has borrowed the amount from the accused, without any rhyme or reasons, challenging the accused that he will not repay the same and further more for demanding the repayment, the deceased had abused and assaulted the accused. Even at that time, the accused did not retaliate and cause any injury on the deceased. It is the evidence of the prosecution that the deceased not only refused to repay the money borrowed, but was further challenging that he will never do so. Only with this background, the quarrel continued at the scene of occurrence at the time when P.W.5 made an attempt to compromise the dispute, it could not be done and the occurrence had taken place some time after P.W.5 went inside his residence and started sleeping. Therefore, we could presume that the quarrel had taken place for some time. Eye witnesses also corroborated about the quarrel which took place prior to the actual occurrence. Further, the overt act attributed against the accused is that he has pushed down the deceased and thrown a big stone on his head. From the act committed by the accused, we could see that there is no premeditation on the part of the accused. Eye witnesses also corroborated about the quarrel which took place prior to the actual occurrence. Further, the overt act attributed against the accused is that he has pushed down the deceased and thrown a big stone on his head. From the act committed by the accused, we could see that there is no premeditation on the part of the accused. The stone found near the scene of occurrence was thrown and in view of the single act of the accused, we could see that the offence committed by the accused will not constitute an offence under Section 302 IPC, and we are of the considered view that the accused has committed culpable homicide not amounting to murder. In view of the nature of weapon used, namely a big stone and since the same has been thrown a the head of the deceased after a fall, we could see the intention on the part of the accused to commit the offence. Therefore, we are of the considered view that the offence will fall under Section 304(1) IPC and since the deceased was continuously quarrelling and at the inception, assault was started by him, and since there are materials to substantiate that in the occurrence took place at 10.00 pm., the deceased was the aggressor, and further in view of the reason that the occurrence took place at 2.30 p.m., is a continuous quarrel in the same night, we are of the considered view that a sentence of Five years rigorous imprisonment will be sufficient in the facts and circumstances of the case. 14. Therefore, while setting aside the conviction and sentence imposed under Section 302 IPC, the offence is modified into one under Section 304(1) IPC and sentence of life imprisonment is modified into 5 years rigorous imprisonment. With these modifications, this Criminal Appeal is allowed in part. The bail bond executed by the accused shall stand cancelled. The trial court shall take steps to secure the accused to commit him to prison to undergo the remaining period of sentence.