JUDGMENT S. NAGAMUTHU, J. The appellant is the sole accused in S.C.No.15 of 2008 on the file of the learned Sessions Judge, Karur. He stood charged for the offence under Section 302 IPC. By judgment dated 31.07.2008, the trial Court convicted him under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for one year. Challenging the said conviction and sentence, the appellant is before this Court with this appeal. 2. The case of the prosecution in brief is as follows; (a) The deceased in this case was one Mr. Manoharan. The accused is his brother. PW2 -Mr. Karuppan is their father. PW2 is a pensioner. He was maintained by the accused. But, the deceased was demanding a portion of the pension amount from PW2. On account of the same, there were frequent quarrels. It is alleged that on 10.06.2006 at about 10.20 p.m., the deceased came to the house of the accused on demanding a portion of the pension amount from his father. The accused resisted the same by saying that since the deceased was not taking care of PW2, he had no right to ask for a portion from the pension amount. In the said quarrel, it is stated that the accused took out a wooden reaper and attacked the deceased on the head. The deceased fell down. Then, the accused ran away from the scene of occurrence. This was witnessed by PWs.1 to 3. (b) Then, PW1 went to the Police Station and made a complaint at 11.30 p.m. on 10.06.2006. PW14 was the then Sub Inspector of Police attached to Aravakurichi Police Station. On receipt of Ex.P1 -complaint from PW1, he registered a case in Crime No.128 of 2006 under Section 302 IPC. Ex.P10 is the FIR. He forwarded both the documents to the Court and handed over the Case Diary to the Inspector of Police for investigation. (c) PW15, the then Inspector of Police, Aravakurichi Police Station took up the case for investigation at 12.30 a.m. on 11.06.2006. On visiting the place of occurrence at 12.45 a.m., he prepared an observation mahazar and a rough sketch in the presence of PW7 and another witness. Then, he arranged a photographer and took photograph of the deceased at the place of occurrence. On visiting the place of occurrence at 12.45 a.m., he prepared an observation mahazar and a rough sketch in the presence of PW7 and another witness. Then, he arranged a photographer and took photograph of the deceased at the place of occurrence. He conducted inquest on the body of the deceased and then, forwarded the body for postmortem. He recovered bloodstained earth and sample earth from the place of occurrence under a mahazar in the presence of PW7 and another witness. (d) PW9 – Dr. Gokila conducted autopsy on the body of the deceased on 11.06.2006 at 11.35 a.m. She found the following injuries: “External injuries: 1) Swelling over the right side of the face 4 x 5 cm. 2) Incised would of about 1 x 2 cm present over the left temporal bone seen. 3) Bleeding thro' back of the skull seen. 4) Abrasion of about 1 x 2 cm present over the left side of the frontal bone. O/D. 1) Skull : Haematoma present over the layer of the skull over the left temporal region. Skull broken over the left temporal region of about 1 x 2 cm. Clotted blood of about 75 ml present over the left temporal lobe of the brain clotted blood of about 50 gm present over the right temporal lobe of brain. 2) Right side of the cheek. Haematoma over the layer of the facial muscle over the right side seen. Fracture of the right mandible seen. 3) Ribs Normal. Lungs normal. Heart normal. 4) o/d of abdomen. Stomach contain about 300-35 gm of undigested rice. All other internal organs are pale and normal.” He preserved the viscera for chemical examination and from the report, it is revealed that there was no poison in the internal organs. Finally, he issued Postmortem Certificate with her opinion under Ex.P8, wherein she had opined that the deceased would appear to have died of shock and haemorrhage due to injuries. (e) During the course of investigation, PW15 arrested the accused on 11.06.2006 at 4.00 p.m near Thada Temple Bus Stop at Aravakurichi. On such arrest, in the presence of PW8 and another witness, the accused gave a voluntary confession in which he disclosed the place where he had hidden the wooden reaper. (e) During the course of investigation, PW15 arrested the accused on 11.06.2006 at 4.00 p.m near Thada Temple Bus Stop at Aravakurichi. On such arrest, in the presence of PW8 and another witness, the accused gave a voluntary confession in which he disclosed the place where he had hidden the wooden reaper. In pursuance of the same, the accused took PW15, PW8 and another witness to a bridge at Nangangi river and produced wooden reaper -MO.1 from the hide out. PW15 recovered the same under a mahazar. Then, he forwarded the accused to the Court for Judicial remand and handed over the material objects to the Court. He made a request to the Court for forwarding the material objects for chemical examination. The chemical examination report revealed that there was human blood found on all the material objects including MO.1 – wooden reaper. He collected the medical records and examined the doctor and on concluding the investigation, he filed final report against the appellant/accused. (f) Based on the above material, the trial Court framed a charge under Section 302 IPC. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 15 witnesses were examined and 18 documents and 7 material objects were marked. (g) Out of the said witnesses, PWs.1 to 6 were examined to speak about the occurrence. But, PW2 -the father of the deceased and PW4 -a neighbour of the deceased had turned hostile and they have not supported the case of the prosecution in any manner. PWs.1, 3, 5 and 6 have spoken about the entire occurrence. PW7 has spoken about the preparation of the observation mahazar and a rough sketch by PW15 in his presence. PW8 has spoken about the arrest of the accused, disclosure statement made by him and the consequential recovery of MO.1 -wooden reaper. PW9 has spoken about the postmortem conducted by her and her final opinion regarding the cause of death. PW10 is an official from the Tamil Nadu Electricity Board who has spoken to the fact that there was no electricity failure at the place of occurrence during the relevant time. PW11 -the photographer has spoken about the photograph taken at the place of occurrence. PW12 and PW13 have spoken about carrying of FIR to the Court and the body for postmortem respectively. PW11 -the photographer has spoken about the photograph taken at the place of occurrence. PW12 and PW13 have spoken about carrying of FIR to the Court and the body for postmortem respectively. PW14 has spoken about the registration of the case on the complaint of PW1. PW15 has spoken about the investigation done. (h) When the above incriminating materials were put to the accused under Section 313 of Cr.P.C., he denied the same as false. However, he did not choose to examine any witness nor to mark any document on his side. (i) Having considered all the above materials, the trial Court has convicted the accused under Section 302 IPC and accordingly punished him. That is how he is before this Court with this appeal. 3. We have heard the learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the State. We have also perused the records carefully. 4. The learned counsel appearing for the appellant would submit that the presence of PWs.1, 3, 5 and 6 at the place of occurrence cannot be believed as they are only neighbours. It is his contention that at athat odd hour that is in the late night there would be no occasion for them to be present at the place of occurrence. He would further submit that there is delay in FIR, which has not been explained away by the prosecution. In the alternative, the learned counsel appearing for the appellant would submit that the act of the accused would not fall under Section 302 IPC and the same at the most would fall only under Section 304(ii) IPC. 5. The learned Additional Public Prosecutor would, however, oppose this appeal. According to him, PW2 – the father of the deceased has turned hostile, probably, with a view to save the accused, who is the surviving son, he might do so. But, PWs.1, 3, 5 and 6 have categorically stated about the occurrence. There is no reason to reject their evidences. According to him, their presence at the scene of occurrence is quite natural. He would further submit that the medical evidence duly corroborates the eyewitnesses account and the recovery of wooden reaper with bloodstains would go to further strengthen the case of the prosecution. There is no reason to reject their evidences. According to him, their presence at the scene of occurrence is quite natural. He would further submit that the medical evidence duly corroborates the eyewitnesses account and the recovery of wooden reaper with bloodstains would go to further strengthen the case of the prosecution. He would further submit that the act of the accused would squarely fall within the ambit of Section 302 IPC and the judgment of the trial Court does not require any interference at the hands of this Court. 6. We have considered the above submissions. PW2 -the father of the deceased has turned hostile. As rightly pointed out by the learned Additional Public prosecutor, it might be because he was in a move to save the accused, who is his surviving son. But, the evidence of PW3, who is the neighbour of the deceased, would carry weightage. According to her, on hearing the quarrel between the accused and the deceased, when she came out of her house, she found that both were mounting attack on each other. In that quarrel, according to her, the accused attacked the deceased with wooden reaper. PWs.1, 5 and 6, who are also neighbours, have stated that on hearing the alarm raised, they also came out of the house and found the accused attacking the deceased. Though these witnesses have been examined at length, we do not find any material on record to disbelieve their evidences, more particularly the evidence of PW3. 7. The learned counsel would submit that there is delay in FIR. Obviously, PW3 -the father of the accused had not gone to the Police Station and made a complaint, probably, because he did not want to antagonise the accused, who is his surviving son. PW1, who was the neighbour, had gone to the Police Station and made a complaint at 11.30 p.m. itself i.e., within one hour. The FIR had also reached the Court without any delay. This also lends assurance to the case of the prosecution. Thus, we reject the argument of the learned counsel for the appellant. 8. Above all, the medical evidence duly corroborates the eyewitnesses account. The discovery of reaper with stains of blood group of the deceased would also go to further strengthen the case of the prosecution. This also lends assurance to the case of the prosecution. Thus, we reject the argument of the learned counsel for the appellant. 8. Above all, the medical evidence duly corroborates the eyewitnesses account. The discovery of reaper with stains of blood group of the deceased would also go to further strengthen the case of the prosecution. From these evidences, in our considered view, the prosecution has clearly proved that it was this accused who attacked the deceased and caused the death. 9. Now, the next immediate question is as to what is the offence the accused had committed by the said Act. Admittedly, there was no motive and there was no premeditation on the part of the accused to cause the death of the deceased. It was only the deceased, who had come to the house of the accused and developed quarrel demanding a portion of the pension amount from PW2. The quarrel went on for some time, as spoken to by PW3 and finally, it turned out to be an exchange of blows between the accused and the deceased. It was in culmination of the same, the accused had taken the reaper which was lying there and attacked the deceased. In our considered view, this act of the accused would squarely fall within 4th limb of Section 300 IPC. Going by the nature of the injury sustained by the accused and the circumstances under which the injury was caused, we are of the view that the act of the accused would fall under the 4th exception to Section 300 IPC. Since the act would fall within the 4th exception to Section 300 IPC, he is liable to be punished only under Section 304(ii) IPC. 10. Now, turning to the quantum of punishment, the accused is 34 years old. He is married. He has got two children. He has to take care of his father and the other family members. He is a poor man. The entire family depends upon his income. He has got no bad antecedents. The occurrence was not happened out of any premeditation. There was no motive on the part of the accused to cause the death of the deceased. The occurrence itself was at the spur of the moment, on account of the quarrel which the deceased himself developed. The entire family depends upon his income. He has got no bad antecedents. The occurrence was not happened out of any premeditation. There was no motive on the part of the accused to cause the death of the deceased. The occurrence itself was at the spur of the moment, on account of the quarrel which the deceased himself developed. Having regard to these aggravating as well as mitigating circumstances by way of striking a balance between these two, we are of the view that sentencing the appellant to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for four weeks, would meet the ends of justice. 11. In the result, this Criminal Appeal is allowed and the conviction and sentence imposed on the appellant/accused in S.C.No. 15 of 2008 under Section 302 IPC is set aside, instead he is convicted under Section 304(ii) IPC and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for four weeks. The bail bond, if any, executed by him shall stand terminated. The fine amount, if any, already paid shall be adjusted. The period of sentence already undergone by the appellant/accused shall be given set off under Section 428 Cr.P.C. 12. The trial Court shall take steps to secure the accused and to commit him in prison so as to serve out the remaining period of sentence.