ORDER : The convicted sole accused is the appellant herein. He has filed this Criminal Appeal to set aside the judgment of conviction dated 24.04.2008 passed in S.C.No.23 of 2008 on the file of the learned Principal Sessions Judge, Thiruchirappalli, convicting the appellant to undergo 7 years rigorous imprisonment and to pay a fine of Rs.1000/- in default to undergo three months rigorous imprisonment for the offence under Section 304(ii) IPC, to undergo 6 months rigorous imprisonment for the offence under Section 427 IPC, and to undergo 6 months rigorous imprisonment for the offence under Section 323 IPC and to pay a fine of Rs.500/- in default two weeks rigorous imprisonment under Section 294(b) IPC. 2. The respondent police has filed charge sheet against the accused, alleging that on 15.04.2007 at about 07.45 P.M., when the accused Murugan came to the petty shop of the deceased Periasamy and attempted to make a phone call in the telephone kept in the shop by inserting Rs.1/- coin, the phone instrument was not functioning properly and thereafter, the accused abusing the deceased for keeping improper telephone took the biscuits to the dogs. When Kumaran, son of the deceased Periasamy questioned the propriety of the accused to do so, the accused threw the biscuits on the street, damaged the soda bottles kept in the shop and also kicked Kumaran on his stomach and torn his shirt and also kicked the deceased Periasamy on his private parts by saying that he will kill him and also kicked him on the chest and caused death of Periasamy on the spot. 3. Based upon the materials, the accused has been charged by the trial Court for alleging the offences under Sections 294(b), 427, 323 and 302 IPC and to prove the charges, the prosecution has examined P.W.1 to P.W.8 and marked Exs.P.1 to P.12 and also M.Os.1 and 2. 4. It is seen from the evidence of the prosecution that P.W.1 Kumaran is the son of the deceased. P.W.2 Mala is the wife of P.W.1. P.W.3 Velusamy is a resident of Kattuputhur Village. P.W.4 Veerammal is the wife of the deceased and mother of P.W.1. The deceased Periasamy was running a petty shop in front of his house. He was also keeping a telephone booth in the shop. The local people used to come to his shop to make phone calls. P.W.3 Velusamy is a resident of Kattuputhur Village. P.W.4 Veerammal is the wife of the deceased and mother of P.W.1. The deceased Periasamy was running a petty shop in front of his house. He was also keeping a telephone booth in the shop. The local people used to come to his shop to make phone calls. On the date of occurrence i.e., on 15.04.2007, there was festival in the village. The deceased was present in the petty shop. The accused Murugan came to the shop at about 07.45 p.m., and attempted to make a phone call by inserting Rs.1/- coin. The telephone was not properly functioning at that time. So the accused scolded the deceased and abused him with filthy language. The accused took the biscuits in the shop and ate them without paying the price. Then he threw the biscuits in the street. P.W.1 asked the accused as to why he was doing like that. The accused started quarrelling with P.W.1 and P.W.1's father deceased Periasamy came there. He also asked the accused as to why he was quarrelling with P.W.1. The accused kicked P.W.1 and also torn his shirt. The accused also abused the deceased with filthy language and kicked the accused on his private parts and when he fell down, the accused kicked on his private parts and caused severe injuries. At that time, the wife of P.W.1 (P.W.2) and one Subramanian and P.W.3 Velusamy came to the spot and the accused ran away from there. Due to the injuries sustained by him, the deceased died on the spot. 5. Taking into consideration of the prosecution witnesses P.W.1 to P.W.4, this Court finds that the place of occurrence has been spoken to by P.W.1 to P.W.4, who are relatives of the deceased as stated supra. Furthermore, the son of the deceased P.W.1 in his evidence has categorically stated that the accused came to the petty shop on 15.04.2007 and P.W.2 has also stated the very same aspect. Thus, taking into the entirety of the version of the private prosecution witnesses P.W.1 to P.W.4, who have clearly demonstrated before the Court that the accused came to the petty shop owned by P.W.1 to make a phone call from the public phone kept in the petty shop, the presence of the accused in the occurrence place on the alleged date cannot be doubted. 6. 6. From the documentary evidence Ex.P.10, accident register of P.W.1 produced by the Medical Officer, it is seen that P.W.1 has sustained simple injury and from the medical evidence of the Doctor, P.W.7, Selvakumar, who has conducted postmortem on the body of the deceased and Ex.P.6 postmortem certificate, it is seen that the deceased died due to the injuries in the vital part (heart). 7. The learned counsel appearing for the appellant/accused submitted that the deceased has not died due to the injury, but only due to old age. 8. It remains to be stated that as per the medical evidence of P.W.7, doctor, he has stated that clotted blood was found and the heart was ruptured. It remains to be stated that P.W.1 to P.W.4 have categorically stated that the accused has kicked the deceased at the private part of the deceased and kicked once on the chest, when he fell out of the balance. Hence, it appears that with regard to the injury as spoken to P.W.7 doctor, there was nothing in Ex.P.6 to show that the deceased has sustained injury on his private organ, however, the cause of death as spoken to by P.W.7 is the rupture in heart. 9. It remains to be stated that P.W.7 has stated in his evidence that:- xxx xxx 10. In the cross examination, he has stated that :- xxx xxx 11. Thus, corresponding to the cause of the injury, P.W.1 died due to stamp on the chest of the deceased as spoken to by P.W.1 and P.W.2 found to be in corroboration with the injury, which is said to have caused death of the deceased. Admittedly, the accused had no prior intention to commit the offence of murder and the accused on the fateful day appears to have come to the scene of the crime to make a phone call. When the accused attempted to make a phone call in a public phone kept in the petty shop owned by P.W.1, it was not working properly. However, the coins put inside in the public telephone is not coming out. Consequently, the accused has got irritation and started to abuse P.W.1 and the deceased, who is the father of P.W.1. When during the quarrel, the deceased asked the accused as to why he has quarreled with P.W.1, the accused appears to have been abused the deceased and also slapped P.W.1. Consequently, the accused has got irritation and started to abuse P.W.1 and the deceased, who is the father of P.W.1. When during the quarrel, the deceased asked the accused as to why he has quarreled with P.W.1, the accused appears to have been abused the deceased and also slapped P.W.1. The accused is said to have kicked the deceased on the chest portion one time. He fell down during the pull and push between the parties. Therefore, there is no premeditation for committing murder and the accused admittedly has not used any deadly weapon. Therefore, taking into the entirety of the circumstances, this Court finds that the charge under Section 302 IPC as modified to 304(ii) IPC by the Lower Court does call for any interference. 12. Admittedly, both of them were grappling each other and no weapon was used. Furthermore, in the set of evidence adduced before the trial Court, it could not be stated the accused would have had the knowledge that by pushing the deceased, it is likely to result in his death appears to be preposterous. At the most, the accused would have had the knowledge that by engaging in a scuffle with the deceased and pushing him, it may cause hurt to the deceased. Hence, in this view of the matter, the conviction and sentence passed under Section 304(ii) IPC is not sustainable the accused can at the most be convicted only under Section 323 IPC. Accordingly, the conviction under Section 304(ii) IPC has been modified into under Section 323 IPC. 13. In such view of the matter, this Criminal Appeal is partly allowed to the extent as indicated above. However, the conviction and sentence passed for the offence under Section 304(ii) IPC is set aside and the accused is convicted for the offence under Section 323 IPC and sentenced to undergo rigorous imprisonment for seven months. The period already undergone by the appellant is ordered to be given set off and the conviction and sentence for offences under Sections 427 and 323 IPC are hereby confirmed. The sentences are ordered to run concurrently.