JUDGMENT : 1. This criminal appeal has been preferred by the accused appellant against the judgment dated 30.12.2005 passed by the Principal District and Sessions Court, Namakkal in S.C. No. 144 of 2005 convicting and sentencing the appellant for the offences punishable under Sections 304 (ii) IPC to undergo seven (7) years rigorous imprisonment along with fine of Rs. 5,000/- in default to undergo one (1) year Rigorous Imprisonment. 2. The facts of the case, as unfolded by the prosecution, that the deceased Muthu is the husband of PW-1. PW-1 was residing at Kathalapettai at the relevant time. On 16.7.2004, the deceased came home for lunch and at that time, he informed PW-1 that the accused threatened him in the morning when he was working in market area, but however, PW-1 advised him not to precipitate the matter. The deceased along with PW-1, PW-2 and some of the relatives came to Kumarapalayam bus stand to go to temple. At that time, the accused came and developed quarrel with the deceased and despite the request made by PW-2 and others not to fight each other, the accused fisted the deceased and pushed him down and as a result, the deceased fell backward on the cement floor platform and succumbed to injuries. PW-3 is running telephone booth near the place of occurrence. PW-4 is running cycle shop near the place of occurrence. PW-5 is owning biscuit shop near the place of occurrence. PW-6 is also owning shop in the market. They all witnessed the occurrence. 3. Immediately, after the occurrence, PW-1 went to the police station and lodged complaint Ex.P1. PW-1 has given statement and the same was reduced into writing by PW-15. On the basis of the complaint, PW-15 registered the case in Crime No. 513/2004 for the offence under Section 302 IPC. Ex.P13 is the First Information Report. PW-15 forwarded the FIR and statement to the Judicial Magistrate and copies to the superior officer for investigation. 4. PW-16, Investigating Officer took up further investigation and proceeded to the place of occurrence and prepared Observation Mahazar and Rough Sketch Ex.P14 in the presence of witnesses and also seized blood stained cement,(M.O.1) and ordinary cement (M.O.2) and others under Ex.P4. He prepared inquest report on the next day morning Ex.P15. He also gave requisition to the Medical College Hospital for conducting autopsy under Exs.P6 and P.7. He prepared inquest report on the next day morning Ex.P15. He also gave requisition to the Medical College Hospital for conducting autopsy under Exs.P6 and P.7. PW-11 Medical Officer conducted autopsy and found laceration on the skull area and small abrasion on the left hand and right hip and also found that the deceased died due to fracture on the skull. PW-11 also issued postmortem certificate Ex.P8 and the medical analysis report Ex.P9. PW-16, in continuation of investigation, had examined Medical Officer and other witnesses. As mentioned above, after completing the investigation, charge-sheet against the accused appellant was filed. Concerned Magistrate took the cognizance. The case being exclusively triable by the sessions court, was committed to the Court of sessions. 5 Accused/appellant appeared and charge under Section 302 and 304 (ii) IPC were framed in the trial court against him. The accused has denied the charges framed against him and claimed his trial. 6. Trial proceeded, and in order to prove its case, prosecution on its behalf examined sixteen witnesses, PW-1 to PW-16, and marked 16 documents, Exs.P1 to P16. On the side of the accused, DW-1 was examined and no documents were marked. 7. After closure of prosecution evidence, statement of accused appellant under Section 313 Cr.P.C. was recorded. 8. Accused person in his statement under Section 313 Cr.P.C. denied the allegations and stated that he has been falsely implicated in the case. 9. Having heard the learned counsel for the parties and going through the record, the trial court has found the accused guilty under Section 304 (ii) IPC and convicted and sentenced the accused appellant, hence this appeal. 10. Learned counsel for the appellant has submitted that there is no motive, whatsoever between the accused and the deceased and the evidence that there were prior incident in the morning cannot be believed and the same was introduced only for the first time during trial. Whereas the evidence of Medical Officer as well as the other prosecution witnesses would clearly suggest that only the deceased started quarrel and fell down. It is further submitted that the Trial Court has convicted and sentenced the appellant placing reliance on very weak type of evidence, which were not sufficient to infer complicity of the appellant in the present case. It is further submitted that the prosecution could not prove its case beyond reasonable doubt. It is further submitted that the Trial Court has convicted and sentenced the appellant placing reliance on very weak type of evidence, which were not sufficient to infer complicity of the appellant in the present case. It is further submitted that the prosecution could not prove its case beyond reasonable doubt. The impugned judgment is not sustainable in the eye of law. Lastly, it is submitted that the sentence imposed upon the appellant is very excessive. Hence, the learned counsel prays for allowing the appeal. 11. On the other hand, learned Additional Public Prosecutor appearing for the prosecution has submitted that the evidence of eye witnesses would clearly prove that only the accused has pushed down the deceased due to prior altercation between them. The prosecution has clearly established the charges against the accused. Hence, it is submitted by the learned Additional Public Prosecutor that the Prosecution has been able to establish the guilt of the accused appellant beyond reasonable doubt. The findings recorded by the Trial Court is in accordance with law. There is no infirmity or illegality in the said findings recorded in the impugned judgment warranting interference by this Court. 12. I have considered the submissions made by the learned counsel for the parties and have carefully gone through the entire record and evidence. 13. On a careful perusal of the entire evidence of PW-1, who is the wife of the deceased, and PW-2, who is the relative of the deceased, it is seen that on the date of occurrence i.e. on 16.7.2004, the deceased came to lunch at 2.00 p.m., and informed PW-1 that the accused has threatened him in the morning. PW-2, who is said to have gone to the house of PW-1 at the relevant time, also supported the evidence of PW-1. PW-2 also stated about prior altercation between the deceased and the accused. 14. It is to be noted that it is the definite case of PW-1 and PW-2 that the deceased, PW-1, PW-2 and others decided to go to Bhavani Kooduthurai temple and, therefore, they proceeded to Kumarapalayam bus stand and at that time i.e. at 3.00 p.m. the accused came and developed quarrel with the deceased and also twisted him and pushed him down and in the said incident, the deceased fell down backward on the cement floor platform and sustained fracture on his head and succumbed to injuries. PW-3 and PW-4 are running a business in the place of occurrence, i.e. near the bus stand. PW-3 to PW-5 also not spoken about the alleged morning incident between the deceased and the accused. Though PW-1 and PW-8 have stated in their evidence that in the morning there were some altercation between the deceased and the accused in the market, the said version was introduced only for the first time during trial. Other witnesses examined on the side of the prosecution have also not spoken about the alleged altercation at 9.00 a.m. In other words, except PW-8, no other witness has spoken about the alleged altercation at 9.00 a.m. It is further to be noted that it is the specific case of the prosecution that while the deceased was going to the temple along with his wife and others, there was quarrel between the deceased and the accused in which the accused fisted the deceased and pushed him down and thereby the deceased succumbed to injuries. 15. In this regard, it is to be noted that the conduct of the prosecution witness also creates serious doubt. Admittedly, the alleged occurrence took place at 3.30 p.m. in the market area where the deceased fell down and succumbed to injuries. As per the evidence of PW-1 and PW-6, it is seen that the police station and hospitals are situated within the same vicinity. Therefore, PW-1 going to the police station at 5.30 to lodge complaint also creates some doubt about the presence of eye witnesses. Further, the evidence of PW-1 that she has taken the deceased immediately to hospital also creates serious doubt. If really PW-1 and PW-2 were accompanied with the deceased, their nature of conduct would be to make big cry and make an attempt to take the deceased to hospital immediately. But as per their own evidence, it is seen that they have not taken such steps in that regard. Therefore, the delay in lodging complaint by PW-1 i.e. after two hours from the alleged incident, also create serious doubt about the case of prosecution. 16. It is further to be noted that postmortem report as well as the evidence of PW-11, Doctor, who conducted postmortem, would show that the deceased, in fact, consumed alcohol at the time of death. PW-11, Medical Officer, in his evidence also clearly stated about this fact. 16. It is further to be noted that postmortem report as well as the evidence of PW-11, Doctor, who conducted postmortem, would show that the deceased, in fact, consumed alcohol at the time of death. PW-11, Medical Officer, in his evidence also clearly stated about this fact. This fact has also been substantiated not only by the oral evidence of PW-11 but also the report of chemical examination Ex.P.9. As per the said report, Ethil Alcohol was found in stomach and other parts of the body. Further the statement of PW-11, Medical Officer, shows that the deceased had alcohol an hour prior to lunch. This fact, in fact, would falsify the evidence of PW-1, PW-2 and also PW-8 with regard to motive. Whereas the statement of PW-3, PW-4, PW-5, PW-6 and PW-7, who were also running shop in the market, would go to show that at the relevant time, there were some quarrel between the deceased and the accused and in the said incident, the deceased was pushed down by the accused. As stated above, the statement of PW-11, Medical Officer, would clearly show that the deceased had alcohol at the relevant time. 17. DW-1, wife of the accused, was examined on the side of the accused. Her evidence would go to show that she went along with her husband in the cycle and when the accused parked his cycle, the deceased, kicked the cycle and demanded money and also abused the accused and while kicking the cycle, the deceased fell down and sustained injuries. Though the prosecution has relied upon as many as 16 witnesses, none of them have spoken about the nature of altercation between the deceased and the accused. But the fact remains that the witnesses are owning shop near the place of occurrence and that they have seen the deceased and the accused at the time when they were involving in quarrel. Of course, none of the witnesses were spoken about the nature of quarrel. PW-11, Medical Officer's evidence would clearly show that the deceased was in intoxication mood and this fact has been clearly established by the prosecution. The evidence of DW-1 would also clearly show that, in fact, the deceased has allegedly demanded money for parking cycle. This incident would lead to quarrel and the said quarrel would have resulted in fall of the deceased. 18. The evidence of DW-1 would also clearly show that, in fact, the deceased has allegedly demanded money for parking cycle. This incident would lead to quarrel and the said quarrel would have resulted in fall of the deceased. 18. On a close scrutiny of the evidence of PW-3, PW-4, PW-5, PW-6 and PW-7, it is seen that the deceased, in fact, has fell down due to the act of pushing by the accused, for which there was no motive. Even though there was some inconsistent found to disbelieve the evidence of PW-1 and PW-2, no reason to disbelieve the evidence of other witnesses. Admittedly, as discussed above, the deceased was in intoxication. The prosecution witnesses clearly established the fact that the accused, in fact, pushed down the deceased and due to which the deceased fell down backwards and sustained fracture and succumbed to injuries. Therefore, the act of the accused pushing the deceased down, who consumed alcohol, is nothing but offence of culpable homicide and the same would not amount to murder. Therefore, the act of the accused comes within the purview of 304 (ii) IPC. 19. That apart, on a careful analysis of the entire evidence, it is seen that except mere quarrel, there was no intention on the part of the accused to cause such death. Hence, this Court is of the view that the act of the deceased would not amount to murder and hence, the Trial Court has rightly come to the conclusion that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt for the offence Under Section 302 IPC. Therefore, the Trial Court has rightly acquitted the accused for the offence under Section 302 IPC. However, the Trial Court, after considering the entire factual matrix and the evidence adduced by the parties, had rightly convicted the accused for the offence 304 (ii) IPC. Thus, on close scrutiny of entire evidence in consonance of the findings recorded by the trial court, this Court is of the view that the prosecution was able to establish the guilt of the accused appellant beyond reasonable doubt for the offence under Section 304 (ii) IPC. 20. So far as the submission regarding sentence is concerned, the question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. 20. So far as the submission regarding sentence is concerned, the question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. Appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of the offence and the manner in which it was executed or committed. It is well settled that the measure of punishment should be proportionate to the gravity of the offence. In the present case, on the close analysis of the entire evidence adduced by the parties and the plea taken by the accused appellant that the conviction imposed on him is excessive, this Court is of the view that the statement made by PW-1, PW-2 and PW-8, which are not supported from the medical evidence could not be believed. 21. However, this Court, taking into consideration the nature of consequence of incident which culminated to fell of the deceased and due to which he succumbed injuries, is of the view that punishment of 7 years imposed the Trial Court is excessive. Therefore, this Court, taking into consideration the mitigating circumstance, particularly, the evidence of DW-1 that the accused has three children and that they have to be taken care of by him, is of the considered view that the ends of justice would meet if the sentence of the appellant awarded to him under Section 304 (ii) IPC is reduced/modified to the Rigorous Imprisonment of two years excluding the punishment of fine imposed upon him in the impugned judgment, which shall be deposited or additional imprisonment ordered to be served-out in default of payment of fine shall be undergone by the appellant. 22. In the light of foregoing discussions, this appeal is liable to be allowed in part and the conviction of the appellant accused, under Section 304 (ii) IPC is liable to be upheld. The impugned judgment dated 30.12.2005 is liable to be modified to the extent as discussed above. 23. Accordingly, the appeal is allowed in part. Conviction of the appellant/accused under Section 304 (ii) IPC is upheld. The sentence of 7 years Rigorous Imprisonment awarded to the appellant/accused for his conviction under Section 304 (ii) IPC is modified and reduced to the Rigorous Imprisonment of two (2) years. 23. Accordingly, the appeal is allowed in part. Conviction of the appellant/accused under Section 304 (ii) IPC is upheld. The sentence of 7 years Rigorous Imprisonment awarded to the appellant/accused for his conviction under Section 304 (ii) IPC is modified and reduced to the Rigorous Imprisonment of two (2) years. Fine imposed upon the appellant for the offence under Section 304 (ii) IPC will be deposited or in default, additional imprisonment as ordered by the Trial court, shall be served-out. Nature of the imprisonment would be the same as ordered by the Trial court in the impugned judgment. The period of sentence already undergone by the appellant accused, if any, is ordered to be set off. The trial Court is directed to take steps to secure the accused to undergo the remaining period of sentence, if any.