Judgment :- M. Chockalingam, J. 1. Challenge is made to the judgment of the Additional Sessions Division, Fast Track Court No. 2, Coimbatore made in B.C. No. 35 of 2008 whereby the sole accused/appellant, stood charged, tried and found guilty of murder and awarded life imprisonment. 2. The short facts necessary for the disposal of this appeal can be stated a follows: (a) P.W.1 was running two plastic factories at Saravanampatti which were situate on either side of a road. 60 persons were employed. The deceased Sowri Muthu @ Muthu was working as a watchman during the relevant time. The accused was also working in the factory, whenever there was excess of work, P.W.1 used to give over time for the employees. Accordingly, on 22. 2007, for the excess work, he called 4 or 5 employees from his factory situate on the other side of the road. Among them, the accused, P.Ws.9 to 11 were also called. Accordingly, on 22. 2007, at about 4.00 a.m., the accused came to do over time work. The factory was kept locked. When a request was made, the watchman refused to open the door stating that he would open it only at 5.00 a,m. Therefore, there was wordy altercation between the accused and the deceased. P.W.11 and others intervened and pacified the situation. But, on the same day at about 8 to 9 a.m., the accused went for toilet. At that time, the deceased switched off the machine and also disconnected the electric connection. After 10 minutes, when the accused came back and found the machine switched off, he again quarreled with the Watchman Muthu. P.W.9, 12 and 17 intervened and pacified the situation. All of them left for lunch at noon. P.W.17 went to the nearby liquor shop. At that time, he saw the accused drinking liquor. After half an hour, P.W.17 left home. When P.W.1 was in the factory, he gave Rs. 100/- to the deceased to get brandy which was also brought to him. Thereafter, at 2.30 p.m., the deceased left the place for lunch. After some time about 3.15 p.m., when P.W.1 and others were talking about the business, they were informed that the deceased with severe injuries was found in front of the factory. Immediately, they rushed there and found the watchman Muthu with severe injuries. Thereafter, at 2.30 p.m., the deceased left the place for lunch. After some time about 3.15 p.m., when P.W.1 and others were talking about the business, they were informed that the deceased with severe injuries was found in front of the factory. Immediately, they rushed there and found the watchman Muthu with severe injuries. Then took him in an auto and they first took him to Rathnapuri Police Station which is within the territorial jurisdiction of Saravanampatti. They, they took him to the hospital P.W.1 gave a complaint to P.W.21 who registered a case in Crime No. 176 of 2007 under Section 302 I.P.C. at 18.00 hours. The express F.I.R. Exhibit P-16 was dispatched to Court. (b) On 22. 2007 at about 6 p.m., on receipt of the F.I.R., P.W.22. Inspector of Police, took up investigation. He went to the spot, made and inspection in the presence of witnesses and panchayatdars and prepared an observation Exhibit P-2 and drew a rough sketch Exhibit P-17. He conducted inquest on the dead body of the deceased in the presence of witnesses and prepared Inquest report Exhibit P-18. Thereafter, the dead body was subjected to post mortem and P.W.15 doctor conducted autopsy on the dead body of the deceased has given his opinion in the post mortem certificate Exhibit P-14 wherein he has stated that the deceased would have died out of the neck injuries sustained by him. (c) Pending investigation, the accused was arrested on 22. 2007 at 7.00 p.m. and he gave confessional statement voluntarily and the same was recorded in the presence of witnesses. Pursuant to which, he produced three reapers which marked as material objects and the blood stained shirt M.O.5 and pant M.O.6 were recovered under a cover of mahazar Exhibit P-7. Then, the accused was sent for judicial remand. All the material objects were subjected to chemical analysis and two reports Exhibits P-10 end P-11 were received. On completion of investigation, the investigating officer filed a final report. (d) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 24 witnesses and relied on 17 exhibits and 8 material objects. On completion of the evidence on the side of the, prosecution, the accused was question under Section 313 Cr.P.C. as to the incriminating circumstances found in the prosecution witnesses and he denied them as false. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 24 witnesses and relied on 17 exhibits and 8 material objects. On completion of the evidence on the side of the, prosecution, the accused was question under Section 313 Cr.P.C. as to the incriminating circumstances found in the prosecution witnesses and he denied them as false. No defence witness was examined. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and found him guilty as per the charge of murder and awarded life imprisonment which is the subject matter of challenge before this Court. 3. Advancing the argument on behalf of the appellant, learned counsel would submit that the prosecution has no direct evidence to offer but rested on circumstantial evidence. Only three circumstances are available for the prosecution. The first circumstance is that the last seen theory. The second circumstance is that at the time of arrest, the accused gave confession statement voluntarily and thereafter, he produced three pieces of reaper, blood stained shirt and pant which was worn by the accused at the time of occurrence. Thirdly, P.Ws.9 to 12 have spoken that there was a quarrel between the deceased and the accused at 4.00 a.m. and also at 8 a.m. on 22. 2007 i.e. on the date of occurrence. Except these three circumstances, the prosecution has no other evidence to offer. 4. So far as the third circumstance is concerned, the learned counsel would add that it did not point to the nexus of the accused with the crime. Even as per the prosecution witnesses P.W.9 to 12, there was wordy quarrel between the accused and the deceased at 4.00 a.m. When the accused requested the deceased watchman to open the factory and the deceased refused to open the door. Thereafter, at about 8.00 a.m. there was a quarrel between the accused end the deceased when the deceased switched off the machine which was actually run by the accused. Learned counsel would further add that the occurrence has taken place at 8.00 a.m. But, the murder has taken place between 2.00 p.m. and 3.00 p.m. on 22. 2007. Thus, there was an interval. Learned counsel would further add that the occurrence has taken place at 8.00 a.m. But, the murder has taken place between 2.00 p.m. and 3.00 p.m. on 22. 2007. Thus, there was an interval. The learned counsel would further add, for payment of over time wages, there was quarrel over the same, one month before the occurrence in which number of workers were actually angry with the deceased. Thus, the deceased has got number of persons inimical to him. Apart from this, the last seen theory was also very feeble. Added further, learned counsel insofar as the arrest and recovery are concerned, it could not be believed since P.W.1 and 11 has spoken that the accused was freely available with him on the date of occurrence, but the police though present did not arrest him and Exhibit P-1 did not refer to the quarrel between the deceased and the accused preceding the occurrence and there is no reference of accused at all. Added further, in the instant case, even the M.Os recovered though subjected to chemical analysis the blood group did not tally. The reaper originally marked was three in number but only one reaper was produced before Court. All would go to show that the prosecution has miserably failed to prove its case beyond reasonable doubt. 5. Learned counsel for the appellant on the second line of argument would submit that if the Court comes to the conclusion that the prosecution has proved the factual position that it was the accused who caused the death of the deceased at the time of occurrence, the act of the accused would not attract the penal provision of murder for the reasons that there was a quarrel between the accused and the deceased and the accused was provoked by the same and that was actually lingering in the mind of the accused and hence, he would have acted so. Under such circumstances, this aspect has got to be considered by this Court and the law has got to be applied in that regard. 6. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 7. Under such circumstances, this aspect has got to be considered by this Court and the law has got to be applied in that regard. 6. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 7. It is not in controversy that one Sowri Muthu @ Muthu who employed as a watchman in the plastic factory of P.W.1 during the relevant time found dead and following the inquest made by the investigating officer, the dead body of Sowri Muthu @ Muthu was subjected to post mortem and P.W.20 doctor who conducted autopsy on the dead body has given his categoric opinion in Exhibit P14 post mortem certificate that the deceased would have died of neck injury sustained by him. The fact that the deceased Sowri Muthu @ Muthu died out of homicidal violence was never disputed by the appellant at any stage of the proceedings. Hence, no impediment is felt by this Court in recording so. 8. In order to substantiate the charge that it was the accused/appellant who caused the death of the deceased, the prosecution rested its case entirely on circumstantial evidence. The Court is mindful of caution made by the Apex Court that in a case like this, the prosecution must place and prove all necessary circumstances beyond doubt pointing to the hypotheses that except the accused, none else could have committed the offence. After applying the above rulings in the instant case, the Court is satisfied that the prosecution has proved the case beyond reasonable doubt. 9. It is not in dispute that the accused and the deceased were employed in the factory. The occurrence has taken place on 22. 2007 between 2.00 to 3.00 p.m. and there re witnesses to speak to the fact that they were available in the factory on the particular day. P.Ws.1, 9 to 11 were available to speak to the fact that they were present on that day. As put forth by P.W.9 and 11, at about 4 a.m. the accused came there and asked the deceased Watchman to open the factory for which the watchman refused and he also stated that he would open it only at 5 a.m. Hence, there was wordy altercation between the accused and the deceased. P.Ws.9 and 11 intervened and pacified the situation. P.Ws.9 and 11 intervened and pacified the situation. Further, there was another wordy quarrel at about 8.00 a.m. When the accused/appellant was doing over time work. He went to toilet t 8.00 a.m. and came after 10 minutes at that time he saw the machine switched off and also found that the electric connected disconnected. When he came to know that it was the watchman who switched off the machine and disconnected the electric energy, he gain quarreled with the watchman and P.W.9 and 11 intervened and pacified them. Following the same, after 4 hours, the occurrence has taken place. The availability of the accused and the deceased and also the wordy quarrel at 4.00 a.m and 8.00 a.m between them were spoken to by the prosecution witnesses and following the same, the incident has taken place. 10. Another circumstances which stood against the accused and in favour of the prosecution is the arrest of the accused/appellant of 22. 2007 at 7.00 a.m. The witness who was examined in that regard is P.W.8. P.W.8 has categorically spoken to the fact of arrest and the confessional statement given voluntarily by the accused following which he produced the weapon of crime, blood stained shirt and pant which were all recovered under a cover of mahazar and the same were found is intact. Thus, the arrest and confessional statement, pursuant to which, recovery of weapon of crime from the accused made would be pointing to the nexus of the accused with the crime. 11. Another strong circumstance is the scientific opinion canvassed by the prosecution side. All the material objects recovered at the place of occurrence, from the dead body of the deceased and the shirt and pant worm by the accused at the time of occurrence were subjected to chemical analysis which brought forth the chemical report Exhibit P.9 and serologist report Exhibit P-10. A perusal of the same would clearly indicate that the blood group found in the clothes worn by the deceased at the time of occurrence and the clothes recovered from the accused are tallying hence, strengthens the prosecution case. All would go to show that except the accused no one else would have causing the death of the deceased. Therefore, in the opinion of the Court, the contentions made by the learned counsel carry no merit and they have to be rejected. 12. All would go to show that except the accused no one else would have causing the death of the deceased. Therefore, in the opinion of the Court, the contentions made by the learned counsel carry no merit and they have to be rejected. 12. As far as the contention put forth by the learned counsel for the appellant that there was time interval between the incident and the quarrel between the accused and the deceased, the Court is of the considered opinion that it cannot be given much weight at all. From the doctor’s opinion it is found that the deceased, at the time of occurrence, has actually consumed alcohol and it was found in the report. At the same time, it is pertinent to point out that in the post mortem certificate the doctor has opined that the death has been caused due to the neck injury sustained by the deceased and not by the influence of alcohol. Though the presence of accused at the time of investigation was actually spoken to by the witnesses it does not mean that he all along available at the time of investigation P.W.9 and 11 would in no way support the defence plea. So far as the recovery of the material objects pursuant to the confession statement voluntarily given by the accused and the recovery made by Investigating Officer P.W.22 are concerned, P.W.8 has clearly spoken about the same. Therefore, the contention raised by the learned counsel for the appellant in this regard has got to be rejected and accordingly rejected. On careful analysis of the available evidence, the Court is of the considered opinion that it was the accused who actually caused the death of the deceased. 13. Coming to the second line of argument made by the learned counsel for the appellant, the Court is able to see force in the contention putforth. It was a case where there was a quarrel between the deceased Watchman and the accused at 4.00 a.m. On 22. 2007 and at 8.00 a.m. on the same day, again there was wordy quarrel between them. It was a case where there was a quarrel between the deceased Watchman and the accused at 4.00 a.m. On 22. 2007 and at 8.00 a.m. on the same day, again there was wordy quarrel between them. When the accused was actually doing over time duty and when he went to toilet at 8.00 a.m. at that time the deceased switched off the machine which was run by the accused and also disconnected the electric energy which caused disturbance and irritation in the mind of the accused due to which the accused was provoked and this provocation sustained in his mind for few hours and this was the reason for causing death of the deceased. Therefore, the act of the accused was neither intentional nor premeditated but being provoked following the quarrel, he has acted so. Under such circumstances, the Court is of the considered opinion that the act of the accused cannot be termed as murder, but it would attract the penal provision of Section 304(1) IPC and awarding punishment of 7 years rigorous imprisonment would meet the ends of justice. 14. Accordingly, the conviction under Section 302 IPC and the sentence of life imprisonment awarded by the trial Court are set aside and instead, the appellant is convicted under Section 304(1) IPC and sentenced to undergo seven years rigorous imprisonment. The period of sentence already undergone by the appellant is ordered to be given set off. It is reported that the appellant is on bail and hence the concerned Sessions Judge shall take steps to secure his presence and commit him to prison to undergo the remaining period of sentence. The fine amount imposed by the trial Court will hold good. 15. With the above modification in conviction and sentence, this criminal appeal is dismissed.