Judgment :- R. Regupathi, J. The appellant, sole accused in the case was convicted for an offence punishable under Section 302 IPC and was sentenced to undergo imprisonment for life. Aggrieved against the conviction and sentence, the present appeal is preferred. 2. As per the charge framed against the appellant, it is alleged that at P.Pudur Veeranam Tank bund, the accused/appellant with the intention of killing the deceased, indulged in quarrel, pushed him down, assaulted him on his face, chest repeatedly with a stone, in the result, the deceased succumbed to death, thereby the accused/appellant alleged to have committed the offence. 3. When initially questioned, the appellant denied the complicity of the commission of the offence and therefore the trial of the case was taken up. The prosecution side in order to substantiate its case, before the trial court examined P.Ws 1 to 14, marked Exs.P.1 to P.16 and produced Material Objects 1 to 4. 4. It is the case of the prosecution that the appellant and the deceased were living in the same village and both of them were dealing in business of teakwood plant sapling. Under such circumstances, there was a business rivalry. On 20.2.2002, P.W.4 informed P.Ws.1 and 2 that the appellant and the deceased were indulging in quarrel at the tank bund. P.Ws 1 and 2 are respectively the brother-in-law and brother of the deceased. Immediately, they ran to the scene of occurrence and found the deceased lying on the ground and the appellant assaulting him with a stone on his chest, face and head. On seeing them, the appellant ran away from the scene of occurrence. The deceased was found dead. Thereafter, P.W.1 went to the police Station and given the complaint Ex.P.1. P.W.3 is also a neighbour of P.Ws 1 and 2 in the same village and seeing P.Ws 1 and 2 running towards the tank bund, he also followed them and found the appellant/accused assaulting the deceased. P.W.4 though has been examined as a witness to speak about the quarrel between the appellant and the deceased under a drunken stage and when he questioned as to why they were quarreling, it was replied by them that there was nothing and therefore he left the scene of occurrence. However, he did not support the case of the prosecution and therefore he was treated as hostile. However, he did not support the case of the prosecution and therefore he was treated as hostile. In the chief examination, he has stated that when he was crossing through the tank bund, has seen the appellant and the deceased and they were talking to each other and did not know anything about the occurrence. 5. P.W.5 is the father of the deceased who stated that the appellant came to the residence at 12.30 pm., and the deceased went along with him to consume liquor. It is further alleged that he has cautioned the deceased that he should not go along with the accused since there was a business rivalry between them. Thereafter, the father came to know about the occurrence, went to the scene of occurrence. 6. P.W.7 is a neighbour, working as Wireman in the Electricity Board and it his evidence that at 1.30 pm., at the time when he was proceeding from Chozhalatharam to his village in his TVS 50 motorcycle, the accused stopped him and requested him to drop him at his residence. He smelt alcohol emanating from the accused and he was also found in an inebriated condition and when questioned, the accused stated that he assaulted the deceased with a stone and killed him. 7. P.W.8 is a woman from the same village who had seen the accused and the deceased together at 1.00 pm., and the deceased requested her to give coconut oil, which was given by her. Thereafter, proceeded towards the north direction. P.W.9 is a neighbour of the accused and it is her evidence that the accused came to his residence and informed her mother to go away from the village along with the sister since he has committed the murder of the deceased. P.W.10 is also a neighbour. It is his evidence that he came to know about the death of the deceased at 4.30 pm., 8. P.W.13, Sub Inspector of Police on 20.2.2002 at 5.30 p.m., on receipt of the complaint, Ex.P.1 given by P.W.1, registered a case in Crime No.34 of 2002 for the offence punishable under Section 302 IPC. Ex.P.13 is the First Information Report. He dispatched the printed copy of the FIR to the learned Judicial Magistrate and to the superior police officers. 9. Ex.P.13 is the First Information Report. He dispatched the printed copy of the FIR to the learned Judicial Magistrate and to the superior police officers. 9. P.W.14 is the Inspector of Police, who on receipt of the FIR at 6.00 pm., reached the scene of occurrence at 6.30 pm., and prepared Observation Mahazar, Rough Sketch, Ex.P.2 and P.14 respectively, which were attested by P.w.6, Village Administrative Officer. Conducted inquest over the dead body of the deceased in the presence of the panchyatdars. Ex.P.15 is the inquest report. Thereafter, the dead body of the deceased was sent for conducting postmortem through one Chidambaram, Head Constable. Recovered bloodstained earth M.O.1 and sample earth M.O.2 under a cover of mahazar Ex.P.3 in the presence of the witnesses. On 22. 2002 at 5.30 pm., arrested the accused, recorded voluntary statement given by him and in pursuance of which, the accused produced the stone M.O.3 and also M.O.4, bloodstained shirt, which were recovered under mahazars Ex.P.5 and P.16 respectively. Thereafter the accused was remanded to judicial custody. The bloodstained articles were dispatched to the Judicial Magistrate Court for receiving the opinion from the chemical analyst. P.W.11 is the Court clerk who received the material objects on request under Ex.P.6 and obtained Ex.P.8, Chemical Analyst report and Ex.P.9, Serologist Report. P.W.12 is the Medical Officer, who on receipt of the requisition from the Inspector of Police, conducted autopsy over the dead body of the deceased and found the following injuries:- "1. 3 x 3 cm blackish abrasion found over the root of the nose at the center-nasal bone fracture. 2. 5 x 7 cm blackish contusion seen around the right eye. 3. 6 x 5 cm oblique blackish abrasion found over the left side of the anterior chest wall at the level of IInd, IIIrd ribs close to the sternum. 4. 10 x 8 cm blackish contusion diffused found over the right side of the chest over the mid clavicle region. 5. 2 x 2 cm blackish abrasion over the thyroid cartilage at the center found on opening 10 x 15 cm dark blood clot found over the ribs extending from the thyroid caplilage on both side. Ribs intact. Heart appeared little congested and empty. Both lungs congested. Hyoid bone intact. Stomach congested. 200 ml of dark black fluid with alcoholic smell (NC). Liver, pale. Spleen congested. Both kidneys congested. Intestines distended with gas and empty. Ribs intact. Heart appeared little congested and empty. Both lungs congested. Hyoid bone intact. Stomach congested. 200 ml of dark black fluid with alcoholic smell (NC). Liver, pale. Spleen congested. Both kidneys congested. Intestines distended with gas and empty. Bladder 100 ml of urine present. Pelvis intact on opening the scalp 5 x 5 cm blood clot present over the temporal bone, dark blood clot around the thyroid cartilage present. Tracheae edematous and congested a contusion 6 x 7 cm oval shaped present over the temporal bone. Skull bone intact. Membranes intact. Brain congested with vessels". The Medical Officer issued Ex.P.12, postmortem certificate and gave the opinion as to the cause of death. 10. The Inspector of Police in continuation of the investigation, after receipt of the opinion from the Chemical Analyst as well as Scientific Expert as well as the Medical Officer and after examination of the witnesses, after conclusion of the investigation, filed final report on 17. 2002 for the offence punishable under Section 302 IPC. 11. On conclusion of the trial, the appellant was questioned under Section 313 Cr.P.C., with regard to the incriminating materials adduced by the prosecution, for which, the appellant denied complicity of the commission of the offence and pleaded innocence. Neither oral, nor documentary material has been produced on the side of the defence. The learned Sessions Judge after hearing the oral arguments of both sides convicted and sentenced the appellant. Aggrieved against the same, the present appeal is preferred. 12. Learned counsel appearing for the appellant submitted that P.Ws.1 to 3 are the alleged eyewitnesses and they are equally related and interested witnesses. They came to the scene of occurrence only after intimation by P.W.4. Both the appellant and the deceased were seen together by P.W.4 and though he has been examined to substantiate the quarrel between them, however, he did not support the case of the prosecution and therefore he was treated as hostile. It is the evidence of P.W.5, father of the deceased that there was enmity between the accused and the deceased and under such circumstances, the deceased would not have gone along with the appellant and the evidence of P.W.5 is not natural. It is further submitted that the extra judicial confession alleged to have been given to P.W.7 and P.W.9 cannot be accepted since it appears artificial. It is further submitted that the extra judicial confession alleged to have been given to P.W.7 and P.W.9 cannot be accepted since it appears artificial. At any rate, the learned counsel submitted that the appellant and the deceased were quarreling with each other after consuming alcohol and the appellant did not commit the murder of the deceased with intention and therefore the offence under Section 302 IPC is not made out. 13. Per contra, the learned Additional Public Prosecutor submits that there are three eyewitnesses, namely P.Ws. 1 to 3 and they have seen the appellant assaulting the deceased with a big stone on the vital part of the body. Both the accused and the deceased were intoxicated and under such circumstances, the accused/appellant prevailed over the deceased and pushed him down and caused injuries on the head and chest of the deceased and thus committed the offence. After the arrest of the accused, the weapon of offence, namely, stone was recovered in pursuance of the confession statement given by him and further the bloodstained shirt of the accused was also produced. The accused after the occurrence was seen in perturbed condition by P.W.7 and further more, the accused confessed to him that he has committed the death of the deceased. Similarly, when he went to inform her mother about the death of the deceased, P.W.9 was present and she also speaks about the extra judicial confession of the accused. Both the accused and the deceased were seen together by P.W.8 prior to the time of occurrence. The Medical evidence and Scientific evidence probably the case of the prosecution that the death of the deceased was due to the homicidal violence by the accused. Therefore, the offence under Section 302 IPC is made out. 14. We have perused the materials available on record and heard the submissions made by both sides. 15. On a perusal of the ocular testimony of the prosecution witnesses including the eye witnesses and father of the deceased, we find that both the accused and the deceased were drunken. P.W.12, the Medical Officer also supports that the stomach contents of the deceased found to contain 200 ml of alcohol. The quarrel between the accused and the deceased was spoken to by P.Ws. 1 to 3. It is only on the information given by P.W.4, P.Ws 1 to 3 reached the scene of occurrence. P.W.12, the Medical Officer also supports that the stomach contents of the deceased found to contain 200 ml of alcohol. The quarrel between the accused and the deceased was spoken to by P.Ws. 1 to 3. It is only on the information given by P.W.4, P.Ws 1 to 3 reached the scene of occurrence. Therefore, we could see that the quarrel between the accused and the deceased was continuing for quite some time. The accused was not armed with any weapon. In view of the facts and circumstances of the case, we find that it is a drunken brawl. The occurrence took place soon after the quarrel between the accused and the deceased. We find there is no premeditation on the part of the accused. The circumstances and the actual wordy quarrel had not been spoken to by any of the prosecution witnesses. However, the fact remains that the appellant assaulted the deceased with the heavy stone on the vital part of the body. The assault has been committed at the spur of moment. At the time when they proceeded from the village, it appears that both of them were friendly and wanted to consume alcohol. Only after consumption of alcohol, both of them indulged in the quarrel, in the result the appellant assaulted the deceased. In view of the facts and circumstances of the case, we find that the act committed by the appellant will fall under Exception 4 of Section 300 IPC in a sudden fight without premeditation and the accused losing his self control at the heat of passion took out the stone which was available in the scene of occurrence and caused the injuries. However, the weapon used is a deadly one since it is a heavy stone and the appellant has caused injury on the vital part of the body of the deceased. Therefore, we can see the intention on the part of the accused. However, we find that the offence committed is culpable homicide not amounting to murder. In view of the facts and circumstances of the case, we find the accused has not committed the offence punishable under Section 302 IPC, however, has committed the offence punishable under Section 304(1) IPC and accordingly while setting aside the conviction and sentence passed by the trial court, we impose a sentence of Five years rigorous imprisonment. 16. In view of the facts and circumstances of the case, we find the accused has not committed the offence punishable under Section 302 IPC, however, has committed the offence punishable under Section 304(1) IPC and accordingly while setting aside the conviction and sentence passed by the trial court, we impose a sentence of Five years rigorous imprisonment. 16. In fine, the Criminal Appeal is allowed in part setting aside the conviction and sentence to the extent indicated as above, passed in judgment dated 10. 2003, made in S.C.No.1 126 of 2003 by the learned Principal Sessions Judge, Cuddalore. However, the fine imposed shall remain unaltered. The bail bond executed by the appellant shall stand cancelled. The trial court shall take steps to secure the presence of the accused for committing him to undergo the remaining period of sentence.