Conviction modified.

(This Criminal Appeal filed under Section 374 Cr.P.C. against the Conviction and sentence dated 21.6.2000 made in S.C.No.49 of 1995 on the file of the Second Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Krishnagiri.)

Aggrieved over the conviction for the offence under Section 304(ii) I.P.C. passed in S.C.49 of 1995 dated 21.6.2000 by the Second Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Krishnagiri and the sentence imposed against the accused to undergo five years rigorous imprisonment and to pay a fine of Rs.1000/-, this appeal has been preferred.

2. Brief facts of the case are as follows:

The deceased is senior paternal uncle of P.W.1. The accused is junior paternal uncle of P.W.1. P.W.3 is sister-in-law of P.W.1. P.W.4 is neighbour of the deceased. According to P.W.1 on 10.10.1993 when he went to see his friend, his brother's wife P.W.3 was taking water from the tap. The son of the accused threw stone on P.W.3 and while seeing the same he asked the accused as to why he threw stone on P.W.3 and consequently there was a quarrel arose between them. The deceased came there and the accused threw a stone on his chest and he fell down. Thereafter the accused kicked on the chest of the deceased. The injured was taken to the hospital, where Doctor examined the deceased and reported that he is dead. P.W.1 and the villagers reported the incident to the P.W.2, Village Administrative Officer. He recorded the statement which has been marked as Ex.P1.

3. P.W.2 prepared a report and gave a complaint to the police station and a case was registered in Crime No.155 of 1993 under Section 302 I.P.C. Then the Inspector of Police went the place of occurrence and prepared Ex.P3 observation mahazar and Ex.P9 rough sketch. On 12.10.1993 P.W.11, the Inspector of Police arrested the accused at Perigai Kulagiri Road. On the basis of confession statement given by the accused M.O.1 was recovered under a cover mahazar of Ex.P.5 in the presence P.W.2 and one Krishnamurthy. The admitted portion of the confession statement is Ex.P5. Pursuant to the confession statement M.O.1 was recovered under a cover of mahazar Ex.P.5. P.W.11 conducted inquest on the body of the deceased and prepared Ex.P10 inquest report. He sent the body through P.W.9 Police constable with Ex.P7 requisition for post mortem. P.W.10, Doctor attached to Hosur Government Hospital conducted post mortem on the body of the deceased on 1.10.1993 and found the following injuries:

"External injuries:

1) Swelling 5 x 4 cm left costal margin, anterior aspect, on midclavicular line and medial to it.

Internal Examination:

Hyoid bone intact. Fracture of 6th rib left side, just medial to midclavicular line. Lungs-Right 375 gm. Left 350 gm. Lacerated wound 5 x 3 cm anterior aspect of left lower lobe close to inter lober fissure. Haemotoma 3 x 2 x 2 cm anterior aspect of left upper lobe close to inter lober fissure with surrounding congestion. C/s congested. Heart-150 gm – all chambers empty. Stomach contains partially digested ragi particles. Liver 950 gm C/s congested. Kidneys-Right, Left 100 gm C/s congested. Spleen 125 gm. Bladder-Empty. Skull-No fracture. Brain-1000 gm. Membranes intact. Base of skull- no fracture. PM exam concluded at 12 noon. No fracture. PM exam concluded at 12 noon."

P.W.10 gave opinion that the deceased would appear to have died of injury to vital organ left lung about 18-20.

4. P.W.11 examined the witnesses and recorded their statements. M.Os.2 and 3 were recovered. After completion of investigation charge sheet has been laid against the accused.

5. Before the learned II Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Krishnagiri on behalf of the prosecution P.W.1 to 11 were examined and Exs.P1 to P10 and M.Os.1 to 3 were marked. On behalf of the accused no witness was examined and no document was marked.

6. When the accused was questioned under Section 313 of Cr.P.C. with regard to incriminating circu