Judgment M. CHOCKALINGAM, J. This appeal challenges the judgment of the Additional District and Sessions Division, Fast Track Court-I, Chengalpattu made in S.C.No.253/2008 whereby the sole accused/appellant who stood charged, tried and found guilty of murder was awarded life imprisonment along with fine of Rs.1000/-in default to undergo one month rigorous imprisonment. 2. The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 and P.W.2 are the residents of Chitlambakkam, within the jurisdiction of the respondent Police Station. The deceased Madan was the brother-in-law of P.W.1. The accused along with his wife Latha was residing in the next house of of the deceased. On 16. 2008 at mid night, i.e., about 12.00 to 12.30 hours, when P.W.2 was sleeping, she heard the distress cry from outside and she opened the door and went outside. At that time, she witnessed the accused attacking Madan with cricket stump. P.W.3 also witnessed the occurrence. On seeing P.Ws. 2 and 3, the accused fled away from the place of occurrence. At about 1.00 a.m., when P.W.1 was sleeping in his house, the door was knocked. He opened the door and found Madan with blood injuries on his head. When enquired him, he stated that it was the Kumar/accused who attacked him with the cricket stump on his head. Immediately, P.W.1 took him to Government Hospital. P.W.5, doctor who was on duty examined him and gave initial treatment and notice the injuries as found in Ex.P4, accident register copy. Despite treatment, Madan died at 6.00 a.m. On 16. 2008. (b) P.W.1 proceeded to the respondent Police Station and gave Ex.P1, complaint. P.W.10, Inspector of Police registered a case in Crime No.1129/2008 under section 302 IPC. The express FIR, Ex.P12 was despatched to Court. (c) P.W.10, Inspector of Police took up investigation. He proceeded to the spot, made an inspection and prepared the observation Mahazar Ex.P.2 and drew a rough sketch Ex.P.13. He recovered M.O.1 series in the presence of witnesses . Then he conducted inquest on the dead body of Madan and prepared the inquest report is marked Ex.P14 in the presence of witnesses. (d) Pursuant to the requisition made, P.W.9, doctor conducted autopsy on the dead body of the deceased Madan and gave post mortem certificate Ex.P10 where he opined that he died out of shock and haemorrhage due to the head injury sustained by him. (d) Pursuant to the requisition made, P.W.9, doctor conducted autopsy on the dead body of the deceased Madan and gave post mortem certificate Ex.P10 where he opined that he died out of shock and haemorrhage due to the head injury sustained by him. (e) Pending investigation, the accused was arrested and he came forward to give confessional statement voluntarily and the same was recorded. The admissible part of the same was marked as Ex.P.8 Pursuant to the confession statement he produced M.O.2 cricket stump which was recovered under Ex.P9 mahazar. All the material objects were subjected to chemical analysis and Ex.P5 chemical and Ex.P6 biology report were received and placed before the Court. On completion of the investigation, the investigating Officer filed a final report. (f) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 10 witnesses and relied on 14 exhibits and 3 material objections. On completion of the evidence on the side of the prosecution, the accused were questioned under section 313 Cr.P.C. and they denied them as false. No defence witness was examined. On hearing the arguments advanced on either side, the trial Court took the view that the prosecution has proved the case beyond reasonable doubt and rendered the judgment of conviction and sentence as referred to above. Hence, this appeal at the instance of the appellant. 3. Advancing the arguments on behalf of the appellant, the learned counsel would submit, in the instant case the prosecution has relied on P.Ws.2 and 3 as eye witnesses. The occurrence has taken place at midnight i.e., at about 12 to 12.30 hours. There was no light available in the public road, but the occurrence according to P.Ws. 2 and 3 have taken place in front of the house of the accused where they witnessed the accused attacking the deceased with cricket stump. Therefore in such a darkness, they could not have seen the occurrence at all. Added further learned counsel, the house of P.W.1 is situated away from the house of the accused and thus, the evidence of P.W.1 stating that the accused came to his house and knocked the door and when he opened the door, he found the accused with blood injuries and took him to the hospital, were all nothing but subsequently introduced in order to foist a case against the appellant/accused. Once the ocular testimony projected by the prosecution through P.Ws.2 and 3 was unacceptable, then, the medical opinion canvassed would be of no avail to the prosecution case. The alleged confessional statement and the recovery of M.O.2, cricket stump were subsequently introduced in order to strengthen the prosecution if possible but in vain. The learned counsel would further submit that the prosecution has miserably failed to prove the case in any manner known to law. 4. As the second line of argument, the learned counsel would submit, if the prosecution case has been proved that it was the accused, who attacked the deceased with cricket stump on the head and as the direct consequence, he died, the act of the accused would not attract the penal provision of murder. The occurrence has taken place at 12 0 clock midnight when the accused witnessed his wife talking to the deceased. When he questioned about the conduct of his wife, it was the deceased who threatened him that he would report the matter to the panchayat, hence, provoked by the same, he took the cricket stump and attacked the deceased. Hence, the accused had no intention of causing the death. Under such circumstances, it has got to be considered by this Court. 5. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 6. It is not in controversy that one Madan, a neighbour of the accused died in the incident that had taken place at 12.30 night hours on 16. 2008. He was taken to the Government Hospital, Chengalpattu where he was medically examined by the doctor. Despite treatment, he died at 6.00 a.m. on 16. 2008. The case came to be registered directly under section 302 IPC by P.W.10. P.W.10 conducted inquest on the dead body of the deceased and prepared the inquest report. On requisition made P.W.9, doctor attached to the Government Hospital conducted autopsy on the dead body of Madan and gave his opinion as a witness before the Court and also through the contents of the post mortem certificate marked as Ex.P.10 that the deceased died out of shock and haemorrhage due to the head injury sustained by him. The cause and time of death as putforth by the prosecution was never disputed by the appellant before the trial court or before this Court. The cause and time of death as putforth by the prosecution was never disputed by the appellant before the trial court or before this Court. Hence, no impediment is felt by this Court in recorded that Madan died out of homicidal violence. 7. In order to substantiate that it was the accused who attacked him the decease Madan with a cricket stump and caused his death, the prosecution marked two witnesses viz., P.Ws. 2 and 3 as eye witnesses. Both P.Ws.2 and 3 were neighbours residing in the opposite house to that of the accused and also the deceased. On hearing the distress cry of Madan, both the witnesses came out of the house at about 12.30 a.m. At that time, both the witnesses found the appellant attacking the deceased with cricket stump. They were neighbours and they are well known to accused and the deceased. The contention putforth by the learned counsel that the occurrence has taken place during mid night and P.Ws. 2 and 3 could not have witnessed the occurrence, cannot be countenanced. Apart from that, immediately, with blood injuries sustained on the head, the deceased proceeded to the house of P.W.1 and knocked the door of P.W.1 and P.W.1 came out and enquired the accused. At that time, the deceased had stated that it was the accused who attacked him with cricket stump and caused injuries. Since Madan died, subsequently, the statement made by Madan to P.W.1 has attained the character of dying declaration. Apart from the same, when P.W.1 went to the Police Station and gave Ex.P1 report, he has narrated the entire statement given by Madan and the same finds place in the F.I.R. Added further, at the earliest, Madan was taken to the Government Hospital where he was given treatment by the doctor and the accident register copy, Ex.P.4 was also marked. 8. Yet another circumstance is the recovery of M.O.2, cricket stump on the confessional statement made by the accused to the investigator P.W.10. which would point to the nexus between the accused and the crime, All put together would clearly indicate the criminal culpability of the accused/appellant that it was he who had attacked the deceased with cricket stump and as a direct consequence, death has occurred. Hence, the contention put forth by the learned counsel for the appellant, do not merit acceptance. which would point to the nexus between the accused and the crime, All put together would clearly indicate the criminal culpability of the accused/appellant that it was he who had attacked the deceased with cricket stump and as a direct consequence, death has occurred. Hence, the contention put forth by the learned counsel for the appellant, do not merit acceptance. However, the court is able to see force in the contention putforth by the learned counsel for the appellant in the second line of argument As could be seen from the available materials, Madan was actually living in the next house of the accused. He was often found talking with Latha, wife of the accused. Despite warning given by the accused, they continued to talk with each other On the date of occurrence at about 12.30 a.m., the accused returned from his job. At that time, he saw them talking. When he question about the same to his wife, it was Madan who intervened and threatened the accused that he would bring the matter to the notice of the panchayat. Being provoked by the same, the accused suddenly took the cricket stump which was lying by his side and attacked him on the head. Thus, it would be quite clear that he had no intention to cause the death but at the same time he has acted so due to sudden provocation. Hence, the act of the accused would not attract the penal provision of murder but would fall under the exception, culpable homicide not amounting to murder. Hence, the Court is of the considered opinion that the act of the accused would attract the penal provision of Section 304(I) IPC and awarding punishment of 7 years RI would meet the ends of justice. 9. Hence, the judgment of conviction and sentence imposed by the lower court on the appellant under Section 302 IPC is modified and instead, the appellant is found guilty under Section 304(I) IPC and sentenced to undergo 7 years RI. The period of sentence already undergone by the appellant is ordered to be given set off. The fine amount and default sentence imposed under section 302 IPC shall be treated as the fine amount and default sentence imposed under section 304(I) IPC. 10. With the above modification in conviction and sentence, the criminal appeal fails and the same is dismissed.