Judgment : R. Subbiah, J. The appellant/sole accused was tried by the learned Principal Sessions Judge, Kanyakumari District at Nagercoil, in S.C.No.177 of 1999, for an offence punishable under section 302 IPC and, on conclusion of the trail, by judgment dated 22.3.2002, he was found guilty and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-in default, to undergo rigorous imprisonment for six months. Aggrieved against the said order of conviction and sentence passed by the trail Court, the present appeal has been preferred. 2. The sum and substance of the prosecution case is as follows: (a) The deceased was a coolie worker. The appellant/accused was the owner of a coconut thoppe. On 12.3.1996, when the appellant was in a tea shop at about 6 pm., the deceased came there and indulged in a wordy quarrel demanding the balance sum of Rs.50/-towards his wages for the work done by him in the coconut thoppe of the accused. In the heat of wordy altercation between them, the accused picked up a rubber stick (i.e., a stick of a rubber tree) lying on the side of the tea shop and attacked the deceased on his forehead and back side of the head and on receiving the attack the deceased fell down on the ground. Thereafter, when P.W.2 and P.W.3 (the wife of the deceased) and one Ponnaiyan who were at the occurrence place raised an alarm on seeing the occurrence and the accused threatened them and left the scene of occurrence. (b) Thereafter, P.W.1 to 3 and Ponnaiyan took the deceased in a taxi to a private hospital where first aid was administered to the deceased by the P.W.7, the Medical Officer of the Private Hospital. Since the hospital authorities instructed them to take the deceased to some other hospital, they took the deceased to the Medico Legal College Hospital, Trivandrum at 11 p.m. on 13.3.1996. Thereafter, on 14.3.1996 at 6 p.m., in spite of the treatment given to the injured, the deceased died. P.W.8 the Medical Officer of Trivendrum hospital has deposed that he, after the death of the deceased prepared a death intimation Exhibit P-3 and sent the same to the Police Department. Thereafter, on 14.3.1996 at 6 p.m., in spite of the treatment given to the injured, the deceased died. P.W.8 the Medical Officer of Trivendrum hospital has deposed that he, after the death of the deceased prepared a death intimation Exhibit P-3 and sent the same to the Police Department. (c) It transpires from the evidence of P.W.11 (Inspector) that on 15.3.1996 while he was in charge of Armunai Police Station the Head Constable Thangaraj (H.C.No.1089) served a copy of the Express Report in Crime No.251 of 1996, registered under Section 302 of IPC relating to this occurrence. (d) P.W.11, the Inspector of Police, who, on receipt of the report, took up investigation on 15.3.1996 and proceeded with the investigation. According to the prosecution, the report was given by P.W.2 on 15.3.1996 at 9.00 a.m. P.W.2 has deposed in his Chief Examination that on 15.3.1996 on the advice of Medical Officers of the Medico Legal College of Trivandrum went to the Police Station and laid the complaint. The piece of evidence of P.W.2 is corroborative of the testimony of P.W.11 in laying the report. (d) P.W.11, the Inspector of Police, who, on receipt of the first information report, went to the scene of occurrence and prepared an Observation Mahazar (Exhibit P-1) at about 11 a.m. and a rough Sketch of the scene, which are marked as exhibits P-1 and P-9 respectively. Then P.W.11, proceeded to Trivandrum Medico Legal College Hospital, and conducted inquest over the dead body of the deceased in the presence of panchayatdars and recorded the statement of P.W.1, 2 and 3 and one Ponnaiyan. Exhibit P-10 is the Inquest Report. (e) P.W.9, the Medical Officer, who on receipt of the requisition given by P.W.11, Investigating Officer, conducted autopsy on 15.3.1996 at 3.30 p.m. and issued the post mortem certificate Exhibit P-5 wherein he had noted the following injuries: “Injuries (Ante Mortem) (1) Contusion 9x8 cm involving the whole thickness of back of head over the occiput. The occipital bone showed a fissured fracture, 12cm extending along the left side of midline downwards to the foramen magnum. The under Surface and poles of both frontal and temporal lobes showed superficial lacerations with thin subdural clots. The occipital bone showed a fissured fracture, 12cm extending along the left side of midline downwards to the foramen magnum. The under Surface and poles of both frontal and temporal lobes showed superficial lacerations with thin subdural clots. (2) Sutured lacerated wound 5.5 cm long oblique over the front of right side of head, the front inner end being 4.5 cm above the middle of right eye brow and the back: outer end 9 cm above the ear. The scalp lobe of brain showed a haemorrhage 4x3.5 cm beneath Brain 1240 gm) showed signes of raised intracranial tension and diffuse subdural and subarachnoid haemorrhages. (3) Contusion 1x0.5x0.5 cm on the right border of posterior part of tongue. (4) Abrasion 1.5x1 cm on the back of the right arm 3 x cm above the elbow. (5) Abrasion 1.5x0.5 cm oblique on back: of right forearm 4 cm below the elbow (6) Abrasion 0.5x0.3 cm over the back of right hand 3 cm above root of the thumb (7) Abrasion 1x0.3 cm oblique on front of left leg 5 cm below the knee. All the above abrasions of left leg 5 cm below the knee. Scab. The haemorrhages and contusions were brownish blue in colour. The margins of the sutured wound were glued together. Air passages contained purulent mucoid fluid. Lungs (right-40 gm; left 330 gm) were congested and oedematous. Stomach 200 gm contained 50 ml of bile stained mucoid fluid having no unusual smell, mucosa was normal. Urinary bladder was empty, normal. All other internal organs were normal. Viscera have been preserved and sent for chemical analysis. The blood group of the deceased was determined in blood bank, MCH, Type and was found ‘B’ Rh Negative.” P.W.9, the Medical Officer opined that the deceased would appear to have died due to the injuries 1 and 2 on the head sustained by the deceased. (f) P.W.11, after examining the witnesses and receiving the medical opinion concluded the investigation and laid the final report against the accused on 15.11.1996. After, filing the charge sheet, the accused was arrested on 18.3.1999 by the Investigating Officer, but no weapon of offence had been recovered. 3. In order to bring home the guilt of the accused, the prosecution examined P.W.1 to 11, marked Exhibits P-1 to 10 and produced M.Os.1 and 2. 4. After, filing the charge sheet, the accused was arrested on 18.3.1999 by the Investigating Officer, but no weapon of offence had been recovered. 3. In order to bring home the guilt of the accused, the prosecution examined P.W.1 to 11, marked Exhibits P-1 to 10 and produced M.Os.1 and 2. 4. The learned trail Judge, with reference to the incriminating evidence adduced by the prosecution, questioned the accused under Section 313 Cr.P.C, for which, he pleaded innocence. No oral and documentary evidence was let in by the defence. The learned trail Judge, after assessing the evidence placed and considering the arguments advanced on both sides, convicted and sentenced the appellant/accused as stated supra. 5. Aggrieved by the conviction and sentence, the present appeal has been preferred by the appellant. 6. Learned counsel for the appellant contended that P.W.1, the brother of the deceased, turned hostile. P.Ws. 2 and 3 (i.e., the wife of the deceased) were examined to speak about the occurrence. According to the learned counsel for the appellant that though P.ws.2 and P.W.3 informed the Medical Officer both in the private hospital at the earliest and thereafter in the Medico Legal College of Trivandrum about the occurrence none of the Medical Officers sent a memo to any of the police officers about the occurrence. Further none of the Medical Officers have instructed the witnesses to lodge a complaint to the police which submission of the defence counsel does not appeal to us. 7. By inviting the attention of this Court to Exhibit P-3 death intimation issued by Trivandrum Medical College Hospital, the learned counsel for the appellant contended that in the death intimation it seems to have been stated as “fall from tree” which would go to show that the injured might not have died as projected by the prosecution. That apart, learned counsel for the appellant also invite the attention of this Court to the evidence of P.W.7, the Doctor of the Private Hospital, and submitted that P.W.7 has stated in his evidence that when the deceased was brought to the hospital by P.Ws.2 and 3, they did not inform him about the occurrence. On that basis the learned counsel has submitted that the evidence P.W.2 and P.W.3 creates a suspicion due to their silence without informing the Doctor about the actual occurrence. 8. On that basis the learned counsel has submitted that the evidence P.W.2 and P.W.3 creates a suspicion due to their silence without informing the Doctor about the actual occurrence. 8. In addition to the above submissions, the learned defence counsel has also advanced the argument that the offence in the background of the motive and situation leading to a sudden provocation which would become punishable under Section 304(ii) IPC and not under Section 302 IPC. In this regard, the learned counsel for the appellant relied upon the following judgments of the Hon’ble Supreme Court as well as this Court: “(i) In Hardev Bhanji Joshi v. State of Gujarat AIR 1993 SC 297 : (1992) SCC (Cr) 842 (ii) In Kuttappan alias Sugathan and others v. State of Tamil Nadu (1989) L.W.Crl.496 (iii) In Palanisamy and others v. State of Tamil Nadu (2005) 1 L.W (Crl) 178 9. Per contra, the learned Additional Public Prosecutor submitted that though P.W.1 turned hostile, the evidence of P.W.2 and 3 is cogent and convincing. It is further submitted that no doubt has been raised in the cross examination of those witnesses to reject their evidence. Further, the injuries found on the body of the deceased which have been caused by the accused with the rubber stick clearly tallied in the post mortem certificate Exhibit P-5. Even in the evidence of P.W.2 and 3, there is no contradiction in manner of the attack made by the accused. Further, the evidence of P.Ws 2 and 3 corroborates with each other and under such circumstances, there is no infirmity in the conviction and sentence passed by the trail Court under Section 302 IPC. 10. We have carefully considered the submissions made on either side and perused the entire records available on record. 11. It is the case of the prosecution witnesses that when the accused was in the tea stall, the deceased came there and demanded wages for the work done by him in the coconut thoppe of the accused who got annoyed over the demand of Rs.50/- made by the deceased picked up a quarrel with the deceased, during which there was exchange of filthy and aggressive words, which resulted the accused taking a rubber stick: lying on the tea stall and attacked the deceased on his forehead and back side of the head and thereafter, he ran away from the scene of occurrence. In this context the evidence of P.W.3 may be deeply examined because that piece of evidence discloses that there was exchange of words in front of Tea shop during which the accused used filthy language. The version of evidence of P.W.3 may be referred which reads as follows: Tamil Admittedly, there was no bleeding injury except a contusion and some abrasions. P.Ws.1 to 4 along with others immediately rushed to the private hospital where the first aid was given to the deceased, thereafter, the Doctor who examined the deceased instructed them to take the deceased to the Trivandrum Medical College Hospital, Trivandrum where the injured was admitted on 14.3.1996 and in spite of the treatment given to the deceased, he died on 14.3.1996 at 7.15 p.m. Thereafter, P.W.2 lodged the complaint to the police. In the absence of any grievous injuries exposing outwardly, the conduct of P.ws.2 and 3 and others in admitting the deceased into the hospital to give immediate treatment without lodging a complaint to the police appears to be not abnormal. Since P.W.2 and P.W.3 and others were very poor and rustic without having sufficient knowledge of the importance of medical treatment. However, on the death of the deceased, immediately a complaint was lodged by P.W.2 tothe head constable of Arumanai police station. 12. Taking the entire scenario into consideration, we do not find any abnormality in the conduct of P.W.2 in lodging the complaint on 15.3.1996. Hence, under such circumstances, the submission made by the learned counsel for the appellant, that the evidence of P.Ws.2 and 3 is not reliable, cannot be accepted. Though in Exhibit P-3, it has been stated as “fall from tree”, no evidentiary value can be attached to the said document for the simple reason that P.W.9, the Medical Officer, who had conducted the post mortem has clearly stated in his evidence that the injuries found on the body of the deceased could not have been caused on account of falling from tree. Further, he had stated in his evidence, that the said injuries could have been caused only with a rigid stick. Besides, P.W.9 (medical officer) states that the words “fall from tree” was not written by him but somebody has written those words. Further, he had stated in his evidence, that the said injuries could have been caused only with a rigid stick. Besides, P.W.9 (medical officer) states that the words “fall from tree” was not written by him but somebody has written those words. Moreover, we find that in the cross examination of P.Ws2 and 3, they have affirmed the statement made in their chief examination with regard to the witnessing of the occurrence. 13. On a deep examination of the oral testimony of P.Ws 2 and 3, we have no hesitation in holding that it was the appellant/accused who caused the injuries, resulting in the death of the deceased. However, the attendant circumstances and the evidence brought on record unmistakably show that the accused/appellant should not have intended to cause the death of the deceased because from the evidence of P.Ws.2 and 3 and Exhibit P-8, it is clear that there was a wordy quarrel between the deceased and the accused with regard to the demand of wages prior to the occurrence. The accused, who was in the tea stall also did not possess any weapon on his hand. It is the prosecution case that due to the wordy quarrel that emerged by the accused who picked up a rubber stick lying on the side of the tea stall, and attacked him. Hence, we are of the opinion that there is no pre-meditation or intention on the part of the accused to commit the murder. The circumstances show that the incident had happened at a spur of the moment. In the facts of the case in a decision of this Court relied upon by the learned counsel for the appellant in Kuttappan alias Sugathan and Other v. State of Tamil Nadu (supra), this court has convicted/the accused who stood on a similar footing under Section 304 Part II IPC and held as follows; “11. Accused 1 seized a spade lying in the work-spot. He did not immediately attack the deceased with the spads. What he would do was that he got the spade dashed against the wall so as to remove the blade portion from the handle and after the severance of the blade portion from the handle, he inflicted two hits on the head of the deceased with the handle of the spade. Immediately after the receipt of the two hits, the deceased fell on the ground. Immediately after the receipt of the two hits, the deceased fell on the ground. It is only thereafter, accused 2 inflicted a cut on his left knee portion and inflicted only once a cut on the left knee portion. Thereafter, both the accused ran away from the scene. The act of the accused 1 in removing the blade portion from handle before ever he did inflict hits on the head of the deceased is proof positive of the fact that he did not intend to cause the death of the deceased and if at all what would have been uppermost in his mind then was to cause some harm to the deceased and this harm so caused by the infliction of sits with the blade handle has unfortunately led to his death subsequently. The act of accused 1 in such circumstances could not be stated to be one done with the intention of causing the death of the deceased and if at all he could have had the knowledge that his act was likely to cause the death of the deceased. As such, the act of accused 1 in such circumstances would squarely fall under Section 304 Part II, IPC.” 14. In yet another case in Hardev Bhanji Josh v. State of Gujarat (supra), the Hon’ble Supreme Court has held as follows: “5. Even, according to P.W.2, A-2 dealt only one blow. The nature of the injury shows that the sharp edge of the axe was not used. The whole thing happened in a sudden manner. Under these circumstances clause I of Section 300, IPC is not attracted. If A-2 had the intention to cause death, one would expect him to use the sharp edge of the axe. The very fact that le used the blunt side of the axe shows that he had no intention to cause the death. Further, it is not a premeditated act. Now, coming to clause III of Section 300, IPC, admittedly he caused only one injury with the blunt side of the axe which unfortunately resulted in the fracture of skull bone. Further this happened during the quarrel. Under these circumstances, it is difficult to hold that he intended to cause that particular injury which the Doctor found to be sufficient in the ordinary course of nature to cause death. Further this happened during the quarrel. Under these circumstances, it is difficult to hold that he intended to cause that particular injury which the Doctor found to be sufficient in the ordinary course of nature to cause death. Under similar circumstances the Courts have held that the offence punishable would be one of culpable homicide as knowledge that he was likely to cause death by such an act can be attribute to the accused. Accordingly, we set aside the conviction of the appellant under Section 302, IPC., and the sentence of imprisonment for life thereunder. Instead we convict him under Section 304, Part II and sentence him to five years R.I. He shall surrender and serve out the sentence. The appeal is partly allowed.” The facts found in that case almost apply to the facts and circumstances of the present case. In the instant case also the deceased had picked up a rubber stick and attached the deceased in a sudden manner. Hence, it could not be said that the accused had attacked the deceased with an intention to cause the death of the deceased. 15. Therefore in the facts and circumstance of the case, we hold the exception II to Section 300 IPC is attracted and consequently, the appellant/accused cannot be held liable under Section 302 I.P.C but would be liable for the offence of capable homicide not amounting to murder punishable under Section 304 Part II I.P.C. 16. In the result, we set aside the conviction under Section 302 I.P.C and the sentence of imprisonment for life awarded by the learned Sessions Judge and instead we convict the accused under Section 304-II. I.P.C. and sentence him to undergo Rigorous Imprisonment for 5 years. The period, if and, already undergone by him shall be set off. The fine amount of Rs.1000/- with default clause imposed by the Court below is confirmed. 17. The criminal appeal is partly allowed subject to the above modification. Appeal partly allowed.