JUDGMENT :- C.T. Selvam, J. 1. The challenge in this appeal is to the judgment of learned Additional District and Sessions Judge, Fast Track Court I, Poonamallee, Tiruvallur District dated 09.04.2011 passed in S.C.No.185 of 2010, convicting the appellant for offence under Section 302 IPC and sentencing him to undergo life imprisonment and fine of Rs.5,000/- in default, to undergo one year simple imprisonment. 2. The case of the prosecution is as follows: i. the appellant, who is the nephew of the deceased, as also the deceased separately proceeded to a funeral in the evening of 26.04.2010. A quarrel broke out between the friend of the appellant and P.W.4, the brother-in-law of the deceased. The appellant supported his friend, while the deceased supported P.W.4. Thereafter, at about 08.30 p.m., the deceased went to the house of the appellant. On seeing him so doing, PW-2, minor son of the deceased informed PW-1, wife of the deceased. The deceased entered the house of the appellant and quarrelled with him. The appellant punched the deceased on his stomach. The deceased bent over, at which instance the appellant picked up a knife lying in the house and dealt a blow to the neck of the deceased. ii. PW-1, wife of the deceased, proceeded to the Korattur Police Station on 26.04.2010 at 10.30 p.m. and preferred a complaint to PW-9, Sub-Inspector of Police, who registered a case in Crime No.229 of 2010 for offence under Section 302 IPC. iii. PW-10, Inspector of Police, took up investigation. The same night, he proceeded to the scene of occurrence and caused photographs to be taken by one Babu. The photographs are MO-6 series. He prepared observation mahazar [Ex.P4] and rough sketch [Ex.P13] in the presence of PW-5 and another. He collected blood stained earth and sample earth and also recovered the knife [M.O.1] used by the accused in the presence of the same witnesses. Thereafter, he examined PWs.1 to 5 and other witnesses and recorded their statements. He proceeded to the mortuary at Korattur Medical Hospital in the morning of 27.04.2010 and in the presence of Panchayatdars, conducted inquest. The inquest report is Ex.P14. He caused photographs of the body in MO-7 series. The related compact disk is MO-8. After completion of inquest, he sent the body through a constable for postmortem. iv. He proceeded to the mortuary at Korattur Medical Hospital in the morning of 27.04.2010 and in the presence of Panchayatdars, conducted inquest. The inquest report is Ex.P14. He caused photographs of the body in MO-7 series. The related compact disk is MO-8. After completion of inquest, he sent the body through a constable for postmortem. iv. The postmortem report [Ex.P8] reads as follows: "PM No.927/10/27.04.10 Post-mortem Certificate Regarding the body of a male aged about 32 years, named Sudhakar. Requisition received at 3.05 p.m. on 27.04.2010 from the Inspector of Police of T3, Korattur Police Station with his letter No.229/10 dated 26.04.2010. Body in charge of Police Constable No.2499/HC named Ravi. Identification and case marks – 1. A black mole on right side chest. 2. A wound scar on right leg. The body was first seen by the undersigned at 3.15 p.m. on 27.04.2010. Its condition hen was rigor mortis present all over the body. Post-mortem commenced at 3.15 p.m. on 27.04.2010. Appearances found at the post-mortem moderately nourished male body with pale peripheries. Injuries: 1. A vertically oblique penetrating stab wound of 3cm x 2cm x cavity deep on upper part of midline neck, the lower end of the wound was 8 cm above the suprastemal notch. Wound margins were regular and bruised. O/D subcutaneous soft tissues on midline of neck were cut along the plane of external injury and the wound entered in the left side neck 4.5cm x 2.1cm stab wound along the medial border of left stemo cleidomastoid muscle and ends 1cm x 0.5cm penetrating stab wound on left internal caronial arteny. The underlying stemo cleidomastoid muscle and subcutaneous soft tissues were bruised. The length of the track of stab would was 5 cm. The direction of the stab wound was from right to left downwards and backwards. Thoracic cavity contained 750 ml. of fluid and clotted blood. 1. A vertically oblique stab wound of 1cm x 1cm x skin deep of midline neck 1 cm above the wound No.1 margins were regular and bruised. The direction of the stab wound was from right to left downwards and backwards. Thoracic cavity contained 750 ml. of fluid and clotted blood. 1. A vertically oblique stab wound of 1cm x 1cm x skin deep of midline neck 1 cm above the wound No.1 margins were regular and bruised. O/D Scalp, intact, brain bones : normal in size membranes and pale intact, larynx, trachea Hyoid bone : surface bruised, mucosa – pale clotted blood in all chambers, Heart : Coronaries –cateur both normal in Lungs : size and pale 200 ml of bole stained fluid Stomach : with no specific smell brown chyme Intestines : present irregular laceration of 10cmx5.4x1cm involving right lobe of liver Liver : and pale. Peritoneal cavity contained 800 ml of fluid and clotted blood. Spleen & normal in size : kidneys & pale Bladder : Empty Opinion as to cause of death- (a) Reserved pending report of .......................................... (b) The deceased would appear to have died of shock and haemorrhage due to cumulative effects of stab injury neck and liver injury. (v) PW-10, in continuation of his investigation, recovered MOs.9 to 12. MO-9 half sleeve shirt, MO-10 a vest, both blood stained, MO-11 underwear and MO-12, blood stained lungi. (vi) He arrested the appellant at about 08.00 p.m. at a bus stop on 27.04.2010. On the basis of the confession of the accused recorded in the presence of PW-7 and another, he recovered clothes produced by the appellant from his house as also recovered a lungi produced by the appellant from a bush at the rear of his house. He caused remand of the appellant and forwarded the properties recovered to Court. (vii) Thereafter, he examined and recorded the statements of PW-7 and another witness. He caused recording of the statements of PWs.2 and 3 under Section 164 Cr.P.C. by Judicial Magistrate, Thiruvottiyur, PW-8. Exs.P2 and P3 are the statements recorded under Section 164 Cr.P.C. He examined the photographer Babu as also PW-6, Doctor, who conducted the postmortem. The postmortem report is Ex.P8. He made requisition for forensic examination of the case properties. Ex.P15 is the Forensic Report. The serelogy reports are Exs.P16 and P17. On completion of investigation, he filed a charge sheet against the appellant/accused for offence under Section 302 IPC. 3. The postmortem report is Ex.P8. He made requisition for forensic examination of the case properties. Ex.P15 is the Forensic Report. The serelogy reports are Exs.P16 and P17. On completion of investigation, he filed a charge sheet against the appellant/accused for offence under Section 302 IPC. 3. To substantiate its case, the prosecution examined PW s.1 to 10, and marked Exs.P1 to P17 besides marking M.Os.1 to 12. On questioning under Section 313 Cr.P.C., the accused denied the charges. None were examined on behalf of the appellant/accused and one exhibit was marked. 4. The learned trial Judge on consideration and appreciation of the entire evidence adduced by the prosecution, has found the accused guilty, convicted and sentenced him as stated above. Hence, the present appeal. 5. Learned counsel for appellant submits that it was the admitted case of the prosecution that both the deceased and the appellant separately proceeded to a funeral where a quarrel took place between the friend of the appellant and the brother-in-law of the deceased. The appellant has supported his friend and the deceased took umbrage against the same. Thereafter, at about 08.30 p.m., the deceased proceeded to the house of the appellant. PW-2, minor son of the deceased, seeing him proceeding towards the house of the appellant, followed him and informed PW-1, wife of the deceased. The deceased entered the house of the appellant and an argument ensued between them and while in the kitchen of the house, the appellant punched the deceased on the stomach. The deceased bent over. The appellant picked up a knife lying there and dealt a blow to the neck of the deceased. Learned counsel submits that the sequence of events even as narrated by prosecution would go to show that it was the deceased who had gone over to the house of the appellant towards picking up a quarrel and in the course of such sudden quarrel the appellant had picked up a knife lying there and caused a blow. It was not the prosecution case that the appellant was armed from the very beginning. It was only the sudden provocation caused by the deceased that had led to the occurrence. Learned counsel submits that the circumstances would not permit of the appellant being convicted for offence under Section 302 IPC. Therefore, learned counsel submits that the finding of the trial Court is erroneous. 6. It was only the sudden provocation caused by the deceased that had led to the occurrence. Learned counsel submits that the circumstances would not permit of the appellant being convicted for offence under Section 302 IPC. Therefore, learned counsel submits that the finding of the trial Court is erroneous. 6. Learned Additional Public Prosecutor submits that the entire occurrence had taken place in the house of the appellant. The occurrence had been witnessed by PW-1, wife of the deceased, PW-2, minor son of the deceased as also PW-3, a neighbour. The weapon used for commission of offence had been recovered and the forensic report informed that the blood group of the deceased and that found on the knife tallied. Therefore, there is no occasion to suspect the genuineness of the prosecution case. 7. We have considered the rival submissions. 8. We find that in the instant case it was the deceased who had proceeded to the house of the appellant and he having picked up a quarrel led to the unfortunate circumstance of his meeting his death. It is not as if the appellant had intended to cause the death of the deceased since in the first instance he has dealt a blow to the stomach using bare hands. It was only in the heat of anger and on the spur of the moment that the knife lying in the kitchen unfortunately came to be used towards causing a cut injury to the neck of the deceased. There is no previous personal animosity between the appellant and the deceased who were close relatives and the appellant had no motive to cause the death of the deceased. In the circumstances, we would find applicable exception 4 to Section 300 IPC, which reads as follows: "Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taking undue advantage or acted in a cruel or unusual manner." As the appellant had caused injury to the neck of the deceased with the knowledge that such act was likely to cause death but in the circumstances, without any intention of causing death, we would find the appellant guilty of offence under Section 304 (ii) IPC. 9. 9. Considering the particular plea of learned counsel for the appellant that the appellant has no bad antecedents, is a married man having a wife and a minor child to take care of, we are of the view that in the facts and circumstances a sentence of five years rigorous imprisonment would serve the ends of justice. Accordingly, altering the conviction to one under section 304 (ii) IPC, we modify the sentence to one of five years rigorous imprisonment. The fine imposed by the Court below is confirmed and shall be relatable to offence under section 304(ii) IPC. 10. Accordingly, the Criminal Appeal is ordered.